England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(MR JUSTICE STANLEY BURNTON)

		Royal Courts of Justice Strand London, WC2
		4th November 2005

1. LORD JUSTICE PILL: This is an appeal against a decision of Stanley Burnton J, given on 23rd March 2005. The judge refused permission to bring a claim for judicial review against a crown court decision which sought to attach conditions to the renewal of an on-licence for a bar, the applicant for the licence being Mr Ghadami, who appears before the court in person today.
2. The judge refused permission to appeal against that order. Permission has been granted following an oral hearing by Waller LJ. Mr Ghadami, the appellant, seeks to quash the decision of the crown court. He did in his notice seek other relief in relation to the conduct of the police, but quite unsurprisingly he has not sought to pursue that.
3. The appellant held a licence for on-licence premises called the Bar Vegas in Kitson Way, Harlow, Essex. He owns an amusement arcade which adjoins those premises at Gatehouse West. In the wall between the bar and the arcade there is an opening, a hole in the wall, and the presence of the access which that permits between the two premises is potentially a breach of section 184 of the Licensing Act 1964 ("the 1964 Act"). That provides:

"(1) If any person makes or uses, or allows to be made or used, any internal communication between licensed premises and any premises, other than licensed premises, used for public resort, or as a refreshment house, he shall be guilty of an offence, and shall be guilty of a further offence for every day on which the communication remains open.

(2) A person guilty of an offence under this section shall be liable to a fine not exceeding ten pounds and, if he is the holder of a justices' licence, he shall on conviction forfeit the licence."

There is no doubt but that a breach of section 184 is itself capable of founding an objection to the renewal of a licence.

4. A licence had been granted to the appellant with respect to the premises in 2002. When the licence came for renewal objection was made to the renewal by the police. The letter of objection is dated 29th January 2004, headed "Re: The Premises of Bar Vegas, Gads and Paradise Lodge, Harlow, Essex". The relevant paragraph of the letter reads:

"My ground for opposing the application to renew the Justices' Licence for Bar Vegas is that there is an internal door connecting the licensed area of Bar Vegas with the unlicensed area of the adjacent amusement arcade. This door is left unlocked in contravention of Section 184 Licensing Act 1964."

The letter is signed by the appropriate licensing officer of the Essex police force.

5. The application for renewal came before the licensing justices. They upheld the objection of the police and refused the licence. They found as a fact that there was no door in the relevant wall, but simply a hole.
6. This is an application for judicial review which depends, of course, on points of law. Generally, this court has to accept the facts as found by the court or tribunal below. There is no doubt that the finding was that there was a hole in the wall, not a door. The appellant complains that in their notice of decision, the magistrates are recorded as referring to a door in the wall. But there is no doubt from the handwritten note of their actual decision that they found there was no door. Nothing turns upon that. There was, it appears, a factual issue about a door, which admittedly is shown on the plan which subsequently was before the crown court. There was an issue as to whether the appellant had, when the licence was granted, been expected to put in that door, or whether he had not. He contends that he did not breach any directions. Upon the grant of the licence, the police accepted that no door needed to be built.
7. However, nothing now turns on that factual issue. Equally, the police are entitled in the discharge of their duties on behalf of the public to change their mind about such a need. Clearly, Parliament in section 184 had concern, and expressed as a criminal offence, concern for use of licensed premises which have an internal access to other premises which are owned by the licence holder. It is not, of course, for this court to challenge or cast doubt upon the policy of that Act of Parliament.
8. Thus, in 2004, when the application for renewal was made, there was a hole in the wall and an objection in the terms raised. The application for renewal having been refused by the justices, the appellant exercised his right to appeal to the crown court.
9. Mr Kolvin, on behalf of the police authority, on being asked to assist the court as to the powers of the crown court in such circumstances, has referred to the case of Sagnata Investments Ltd v Norwich Corporation [1971] 2 QB 614. While there is no express provision in the Licensing Act, the established practice is (and Patterson, 2005 edition, page 1652 confirms what counsel has told us) that the hearing before the crown court is de novo. Further the crown court, by established practice, has the full powers of the justices and, for present purposes, can make any order which the justices could have made. The Recorder heard the appeal and there were justices sitting with him.
10. There was a hearing of some length before the crown court, and in the bundle we have the transcript. The appellant was represented by counsel, Mr Jones, and there was a full exploration of the issues. The decision of the court was that, subject to a condition, a licence should be granted; the condition being that a fire door was built in the hole in the wall.
11. The crown court were invited by the appellant to state a case. They declined to do so. However, nothing turns on that. His ability to seek permission for judicial review is not in issue and that is what he did, by application to the Administrative Court. The application was refused on paper by Davis J, and following an oral hearing by Stanley Burnton J.
12. Following an oral hearing on 9th June 2005, Waller LJ granted permission to appeal. He identified three points as arguable. They appear at paragraphs 11 to 13 of his grant of permission. The appellant has taken up those points today. He also makes a fourth point, which has not found favour in any of the hearings below, in relation to the word "structural" which appears in section 19 of the 1964 Act.
13. Section 19 is headed "Power to require structural alterations on renewal of on-licence":

"(1) On an application for the renewal of a justices' on-licence the licensing justices may require a plan of the premises to be produced to them and deposited with their chief executive, and on renewing such a licence the licensing justices may order that, within a time fixed by the order, such structural alterations shall be made in the part of the premises where intoxicating liquor is sold or consumed as they think reasonably necessary to secure the proper conduct of the business."

It is not necessary to refer to the other subsections.

14. The first of the points raised by Waller LJ is as to whether the crown court had required a plan of the premises to be produced to them. Waller LJ did not have the advantage of the transcript of the hearing before the crown court. It is clear that the plan to which I have already referred, which dated back to the grant of the licence, was before the court and was the subject of discussion. At page 84, during cross-examination of the appellant:

"Q. There has never been a door at that time, all right, because, you see, on the plan it looks like, do you understand, it looks like on the plan that it is envisaged there will be a door there because it is not just a gap, there is a little sign signifying there is a door, do you understand what I mean?

A. Yes.

Q. You would agree, looking at the plan, you think there might be a door there, even if the premises are not quite finished yet, there is going to be --

A. One could assume there was a door there, one could assume there was a door there, but one could also assume that the door... it doesn't say there that it states it has to be locked or a fire escape or anything like that.

Q. I understand that.

A. Yes, we could put a door there but as along as we could open it, that's fine."

15. For the police authority, Mr Kolvin draws attention to the word "may" in section 19(1). There was no obligation to require a plan to be produced to them. He refers to the fact that one should read "crown court" for the "licensing justices" in section 19(1), and he further relies on the fact that, in the event at the hearing before the crown court acting in that capacity, a plan of the premises was produced and was considered. I agree that there was jurisdiction to make an order under the section.
16. The additional point raised in relation to structure is that the insertion of a door required by the condition was not a "structural alteration" within the meaning of section 19(1). I do not accept that submission. We have been referred to the decision of this court in Smith v Justices of Portsmouth [1906] 2 KB 229, where the point arose under the Licensing Act 1902. Cozens-Hardy LJ stated at page 238:

"The expression 'structural alteration' is used in one part of the sub-section, and I think that what the section as a whole contemplates is some physical alteration, not a mere restriction of the user of the premises ..."

The issue there was as to a proposed condition requiring a door to be locked.

17. Sir Gorell Barnes, President, stated at page 239:

"... the last sentence of the 4th sub-section seems clearly to shew that what the justices may order is something permanent, and not something of a changing character, as that a door shall be sometimes locked and sometimes unlocked."

18. I have no doubt that what was required by the condition was a structural alteration within the meaning of section 19.
19. The second of the points raised by Waller LJ is that the objection raised by the police was only in relation to a section 184 offence and not of a more general kind. The provision for objection is set out in section 7(2) of the 1964 Act:

"A person intending to oppose an application for the renewal of a justices' licence shall give notice in writing of his intention to the applicant and the clerk for the licensing justices, specifying in general terms the grounds of the opposition, not later than seven days before the commencement of the licensing sessions at which the application is to be made, and unless notice has been so given the licensing justices shall not entertain the objection ..."

20. The submission made by the appellant is that, by its wording, the paragraph in the objection letter is concerned only with a contravention of section 184, and does not permit evidence to be given or submissions made on the more general concern as to movement between the premises, which was plainly a concern of Parliament when enacting the 1964 statute. He submits that the reference in the paragraph to section 184 governs the whole of the paragraph in the letter, so that the more general point which was taken by the crown court as to what was under consideration could not properly be taken.
21. That is a possible reading of the paragraph, but in my judgment, having regard to the statutory purpose, the objection should be read in a more general way. The general reference in the first sentence in the paragraph in the letter to the internal door -- and I need not go back through the factual points which arose on that -- permitted the police at the hearing to raise general concerns about the availability of access between the licensed premises and the amusement arcade next door. The objection should not, in my judgment, be narrowly construed. There is some issue as to the extent to which more general points were considered at the hearing. I have no doubt that the more general concern was one which was considered at the hearing and the crown court made a decision on the basis of it.
22. Some support for the more liberal approach to the definition of the scope of an objection comes from the judgment of Wills J in R v Justices of Miskin Higher [1893] 1 QB 275, at 279. The facts there were quite different. The issue was whether the premises in question were of a disorderly character. A liberal view of the scope of the objection was taken, Wills J stating that:

"... where an objection is formally made by a notice which specifies the grounds of the objection, the justices are at liberty to go into other relevant grounds of objection which suggest themselves, ..."

23. The reference in the letter to section 184 identifies the mischief. The police were not limited in the objection they were entitled to take to proving that there had been a breach of the section amounting to a criminal offence. In my judgment, the crown court, as licensing justices, were entitled to take the view of section 19 which they did, to take the view of section 7 which they did, and to consider the power of the court to require structural alterations on the renewal of an on-licence for general purposes.
24. If that is right, the third of the points identified by Waller LJ and pursued by the appellant does not arise because the power of the court did not depend on proof of a section 184 offence. It is a point on the wording of section 184 and in particular the words "makes or uses" in subsection (1).
25. The appellant has referred to the decision of this court in Commissioners of Customs and Excise v Griffith [1924] 1 KB 735. An issue which arose in that case was whether the offence in the sub-section could be proved only if the access was one created after the original grant of the licence. It is submitted that on the findings of fact in this case the hole in the wall was present when the licence was initially granted, and, that being so, it is not possible to rely on a renewal on a point which could have been but was not taken when the licence was first granted.
26. I see force in that submission, especially having regard to the high authority of the members of the court in Griffith who made the observations they did. They did not decide the point, but they indicated their view, particularly having regard to the fact that the word "makes" appears before the word "uses", that the section would only apply if the relevant access was created after the initial grant of the licence.
27. It is not necessary to decide that point. I am satisfied that the crown court were entitled to take into account the objection made by the police in a more general way. It was within their powers to allow the appeal to the extent of granting the licence subject to the condition which they sought to impose. I see no arguable point of law which would justify the grant of permission to apply for judicial review and for this court to go on to determine the application.
28. The appellant plainly feels strongly about the way in which matters have proceeded, and has sought to address the court in some detail upon that. It is neither necessary nor appropriate for this court to consider other issues. He refers to errors which he submits are in the record and he challenges some of the evidence which was given to the courts below.
29. The appellant must, to obtain relief by way of judicial review, establish an error of law in the decision complained of. In my judgment it is not arguable that any such error has been made. For the reasons I have given, I would dismiss this appeal. The judgments in this case may be cited.
30. LORD JUSTICE LATHAM: I agree.
31. LADY JUSTICE ARDEN: I agree with the order that my Lord has proposed for the reasons that he has given.
32. In this case, the premises had a pre-existing internal communication to other premises used by the public which were not licensed. Section 184(1) of the Licensing Act 1964 that if a person "makes or uses, or allows to be made or used" any internal communication between licensed premises and any premises other than licensed premises used for public resort or as a refreshment house, he shall be guilty of an offence.Had section 184 of the 1964 Act been in point in this case, a difficult question of interpretation would have arisen as to whether that section applied to a pre-existing internal communication.
33. This question of interpretation was considered in relation to section 70 of the Licensing (Consolidation) Act 1910, which is the predecessor of section 184, in Commissioners of Customs and Excise v Griffith [1924] 1 KB 735, a decision of this court (Bankes, Scrutton and Sargant LJJ). There are at least three possible interpretations, and the members of the court reached different views. First, there was the view expressed by Bankes LJ, that the section in question applied to a pre-existing internal communication, but that there would simply be an offence for which a nominal penalty would apply. Secondly, there was the view of Sankey J giving the judgment of the Divisional Court that the licence, if granted when such a communication existed, would be granted on condition that the internal communication would not be used (see page 750 of the report). Thirdly, there was the provisional view of Scrutton and Sargant LJJ that the section certainly applied to an internal communication coming into existence after the granting of the licence, but that there was considerable difficulty in applying the section to an existing communication.
34. In the Griffith case the point did not have to be resolved because the court decided that the 1910 Act did not prohibit the grant by licensing justices of a licence, for premises with a pre-existing internal communication. It was a matter for their discretion. The premises in question were the well-known department store of Harrods, which sought to have a restaurant within the store which would supply liquor. History does not record whether Harrods was subsequently prosecuted when the licence was given.
35. As Lord Justice Pill has explained, we too do not have to decide this point. For my part, I would incline to a purposive interpretation that the section would not entail the commission of an offence if a licence was granted where the premises had a pre-existing internal communication. In my judgment, it is unlikely that Parliament could have intended that result. However I express no final view because the point has not been fully argued. I would adopt as the reason for my provisional conclusion on this the reason given by Scrutton LJ at page 748. He held:

"The words 'make or allow to be made' clearly refer to a communication made since the date of the licence, and in my view the words 'use or allow to be used' refer to a communication so made. I see considerable difficulty in the way of a construction which makes the section refer to communications in existence at the date of the licence."

36. The reasoning of Sargant LJ was to a similar effect:

"It appears to me that the way in which the phrase runs, 'make or use' instead of 'use or make,' rather points to this, that the making comes first and the using afterwards, and the internal communication which is there referred to is a communication which is made after the grant of a licence, or which is used when made after the grant of a licence, rather than a communication existing at the date of the licence. If it had been intended to refer to existing communications as well as future, the phrase would have run 'shall not use or make.'"

37. I make these points because Stanley Burnton LJ in the course of his judgment stated that:

"With the greatest respect to the Court of Appeal, I have some difficulty in reading section 184 in that way; ..."

That is, so as to apply only to openings created after the date of the licence. I would not want those words to be relied on too far.

ORDER: Appeal dismissed with costs summarily assessed in the sum of £5,015; permission to appeal to the House of Lords refused.

(Order not part of approved judgment) ______________________________