Update: licensing

Appeal to the magistrates

R (Hope and Glory Public House Limited) v City of Westminster Magistrates' Court [2011] EWCA Civ 31 concerned noise generated by customers drinking outside a public house which had been found at review to constitute a public nuisance for the purposes of the Licensing Act 2003. Conditions placed on the premises licence included a prohibition on customers taking drink from the premises in an open container after 6pm.

The Court of Appeal was asked to consider the approach to be taken by a magistrates' court on an appeal from a licensing authority decision under the 2003 Act. In essence, to address the apparent conflict between the fact that the appeal to the magistrates is by way of a re-hearing and the proposition that in order to allow an appeal the magistrates must decide that the decision taken by the licensing authority was wrong (Stepney BC v Joffe [1971] 2 QB 614 and Sagnata Investments v Norwich Corporation [1971] 1 KB 599).

The court held Stepney and Sagnata to be good law and went on to provide assistance in exposing the conflict as more apparent than real. The court held there were many variables that fall to be considered by the magistrates such as 'the nature of the issue, the nature and quality of the reasons given by the licensing authority and the nature and quality of the evidence on the appeal'.

However, in 'very general terms' the court held that 'the magistrates' court should pay careful attention to the reasons given by the licensing authority' but that the weight attached to the reasons depended on the variables mentioned above.

In practice this means that licensing authorities should fully formulate their reasons, the burden is on the appellant to prove the case (which suggests that the appellant goes first) and the weight attached to the reasons will depend on their quality and the evidence before the appeal (for example, a person making unchallenged representations before the licensing sub-committee may have their evidence undermined in cross-examination before the magistrates).

License conditions

R (on the application of Somerfield Stores Limited) v Hinckley Magistrates' Court (Defendant) and Blaby District Council (Interested Party) [2011] LR 8315 (Admin) considered the correct procedure where magistrates fail to issue a certificate of refusal to state a case; the validity of a condition on a premises licence that future breaches will result in revocation; the effect of such a condition on subsequent reviews; and partial quashing/severance in the event of illegal conditions.

At a review, conditions were placed on a premises licence including 'any further underage sales will result in revocation'. At a second review further conditions were placed on the licence including (1) that 'any further underage sales will result in revocation' and (2) that alcohol sales must cease at 4pm on Fridays and Saturdays. An appeal to the magistrates failed and a request was made to state a case to the High Court.

The magistrates refused to state a case and failed (at least initially) to issue a certificate of refusal. Rather than apply for judicial review to compel the issue of a certificate, Somerfield chose to judicially review the appeal decision as a simpler and more effective way of dealing with the matter. Permission was refused on the papers on the basis that judicial review should have been sought to request the magistrates to issue a certificate. Somerfield argued successfully at an oral hearing before Mr Justice Beatson that the court had a discretion and that permission should be granted.

The 'revocation condition' was accepted by the interested party to be illegal but an attempt was made to uphold the condition restricting alcohol sales to 4pm on Fridays and Saturdays. However, it was eventually conceded that the 'revocation condition' imposed at the first review tainted the magistrates' appeal which had started from the wrong position. A partial quashing order by way of consent severing the offending conditions from the licence was approved and signed by Mr Justice Foskett on 3 December 2010.

Badly worded order

R (in the Pink) v Leeds Magistrates' Court [2010] LLR 140 concerned a review following a 'glassing' incident. The magistrates on appeal made a badly worded order and, while judicial review proceedings were pending, the magistrates' court clerk wrote explaining what the magistrates had intended to do. The appellants argued that the error could not be treated as merely typographical and be remedied by the post-hearing letter. However, the court held that it was better that the clerk had remedied the defect and there was nothing to be gained from rehearing the matter.

Powers of licensing committees

Murco Petroleum Ltd v Bristol City Council [2010] EWHC 1992 (Admin). On an application to licence a petrol station forecourt shop the authority considered that insufficient information had been supplied on primary use and adjourned the hearing to a specified date, then again to an unspecified date.

The court agreed the sub-committee had no power to adjourn to an unspecified date but had power to adjourn the hearing utilising regulation 12 of the Licensing Act 2003 (Hearing Regulations) 2005 in accordance with the secretary of state's guidance which states that 'where there is insufficient evidence to establish primary use, it is for the licensing authority to decide whether to grant the licence and deal with any issues through enforcement action or to defer granting the licence until the primary use issue can be resolved to its satisfaction'.

The result is an application may be put on hold indefinitely, by repeated adjournments. One leading commentator has described the decision as 'a denial of justice'¦ the applicant is entitled to a decision one way or the other, not to be put 'on hold' without the opportunity of recourse, except expensive and at times frustrating judicial review'.

The claimant in Murco chose not to appeal the decision but, if a broad interpretation is given in subsequent cases, the decision may come under future challenge.

Books and guidance

The Department for Transport has updated its guidance for local authority regulation 'of the taxi and private hire vehicles trade'. A revised Taxi and Private Hire Vehicle Licensing: Best Practice Guidance was published in October 2010 replacing the 2006 version. It is little changed from previous guidance and we still await news on the long-overdue reform of taxi licensing.

Having resumed responsibility for alcohol licensing (regulated entertainment remains with the DCMS) the Home Office published amended guidance under section 182 Licensing Act 2003 in October 2010; mainly to cover the additional mandatory conditions introduced by The Licensing Act 2003 (Mandatory Licensing Conditions) Order 2010 which came into force in April and October 2010.

Despite indications that the coalition intended to scrap these mandatory conditions, introduced by the previous Labour government, it now seems that they will remain; allowing operators, practitioners and enforcement agencies to continue to ponder the meaning of 'irresponsible drinks promotions'.

Paterson's Licensing Acts 2011 (119th edition, LexisNexis) has been published and its two volumes, running to some 5,300 pages plus CD, currently provides the most up-to-date tome for licensing practitioners. One of its advantages over competitors is the production of a new volume annually, together with a CD update in July each year.

The work covers alcohol and entertainment law, gambling, taxis and street trading. The last two of these are welcomed, recent additions and perhaps at some future date a section on firearms may be included. The current editors are doing a fine job of incremental rather than radical overhaul to make the volume more accessible, while not losing its distinctive character and value. In particular, this year sees an improved preface to volume 1. Paterson's remains an indispensible tool for licensing practitioners.

Legislation

The Equality Act 2010 (sections 160-173) has started to replace the taxi provisions in the Disability Discrimination Act 1995 (sections 32-38). Some of the sections came into force on 1 October 2010, while others await commencement dates. For the time being, at least, both Acts will have applicability for taxi licensing. Matters covered include accessibility of passengers, numbers of wheelchair accessible taxis, disabled passenger safety and assistance dogs.

The police reform and social responsibility bill, introduced into parliament on 30 November, is working its way through the legislative process. The legislation is based on the premise that the Licensing Act 2003 and subsequent measures introduced by the Labour government have failed successfully to address alcohol-related crime and disorder.

The coalition approach is to overhaul the 2003 Act to give more powers to local authorities and the police (as part of its 'localisation agenda') to tackle any premises that are causing problems, doubling the maximum fine for persistent underage sales and permitting local authorities to charge more for late-night licences to contribute towards the cost of policing the nighttime economy.

The measures introduced by the previous administration were often hastily introduced, ill thought out and aimed more at securing political capital rather than a considered approach to the issue of alcohol-related crime and disorder. However, any hope of a more considered and research-based approach by the coalition government seems unlikely to be fulfilled. This is evidenced by the hastily announced and concluded consultation Rebalancing the Licensing Act (Home Office 2010b).

The perceived wisdom on the part of the last and current government, the media and many criminal justice agencies seems to be that there is a simple causal link between alcohol, crime and disorder. Further, that problems are caused by a minority of drinkers and licensed premises that behave irresponsibly. There appears to be little or no reliable evidence base for these assumptions. Nevertheless, responses have cascaded down over the past five years in a haphazard, irrational and increasingly complex fashion.

Enforcement agencies and licensing authorities face being overwhelmed by the relentless welter of measures, reports and guidelines being produced. It is hard not to see the majority of these responses as populist rather than realistic responses in the absence of a reasoned debate on the relationship between alcohol, crime and disorder; a debate which is long overdue. However, the mass of new, confusing and ultimately flawed legislation should continue to keep licensing practitioners busy for some time to come.