England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)
The Recorder of Birmingham (His Honour Judge William Davis Q.C.)
[2010] EWHC 2330 (Admin)

		Royal Courts of Justice Strand, London, WC2A 2LL
		29/06/2011

Lord Justice Moore-Bick :

1. This is a claim for judicial review which Maurice Kay L.J. directed should be retained in this court following the grant of permission to proceed made on an application for permission to appeal.
2. The claimant, Mr. Khan, runs a local supermarket in Coventry, which sells groceries and other goods, including beer, wines and spirits. A licence to sell alcohol for consumption off the premises was granted to the previous owner and was transferred to him some months after he acquired the business. In January 2009 the interested party, Coventry City Council, made an application to its licensing committee as the local licensing authority, for a review of Mr. Khan's licence on the grounds that he had been selling alcohol to persons under the age of eighteen. On 23^rd March 2009 the licensing committee revoked his licence. Mr. Khan lodged an appeal to the Coventry magistrates against that decision.
3. The magistrates heard the appeal in the course of one day at the end of August 2009. Among the witnesses who gave evidence on behalf of the Council was a Mr. Harwood, one of its Trading Standards Officers, who described, among other things, action taken by Her Majesty's Revenue and Customs ("HMRC") in December 2008 to seize two consignments of spirits on which it was believed duty had not been paid. He also gave evidence of a complaint made by a local resident that the shop was receiving large deliveries of alcohol from the back of a van at strange hours several times a week. Mr. Khan says that he objected to the admission of that evidence, but the magistrates dismissed his objections and it therefore formed part of the material before them. In a written decision delivered on 2^nd September 2009 they dismissed the appeal, giving as their reasons the following:

(i) that the appellant had breached a fundamental section of the Licensing Act;

(ii) that he had a poor understanding of the Act and particularly of the role of the licensee, the designated premises supervisor and the licensing objectives; and

(iii) that the management of the premises was such that there was a real likelihood that crime prevention measures in the vicinity and the aim of protecting young persons from harm would be undermined by his holding a licence.

4. Permission to proceed with a claim for judicial review was limited to one ground, namely, 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. Accordingly, it is said that they ought not to have admitted or taken into account when making their decision that part of Mr. Harwood's evidence which referred to HMRC's investigations or the complaint about receiving deliveries of alcohol at odd hours. That evidence related solely to the question whether Mr. Khan was selling alcohol on which duty had not been paid, an allegation that had not been raised in the proceedings before the licensing authority.
5. Mr. de Mello, who appeared for Mr. Khan, based his submissions on the terms of the Licensing Act 2003 and certain of the regulations made under it. The important provisions of the Act for present purposes are sections 4, 51 and 182 which provide as follows:

"4 General duties of licensing authorities

(1) A licensing authority must carry out its functions under this Act ("licensing functions") with a view to promoting the licensing objectives.

(2) The licensing objectives are—

(a) the prevention of crime and disorder;

(b) public safety;

(c) the prevention of public nuisance; and

(d) the protection of children from harm.

51 Application for review of premises licence

(1) Where a premises licence has effect, an interested party or a responsible authority may apply to the relevant licensing authority for a review of the licence.

. . .

(3) The Secretary of State must by regulations under this section—

(a) require the applicant to give a notice containing details of the application to the holder of the premises licence and each responsible authority within such period as may be prescribed;

(b) require the authority to advertise the application and invite representations about it to be made to the authority by interested parties and responsible authorities;

(c) prescribe the period during which representations may be made by the holder of the premises licence, any responsible authority or any interested party;

(d) require any notice under paragraph (a) or advertisement under paragraph (b) to specify that period.

181 Appeals against decisions of licensing authorities

(1) Schedule 5 (which makes provision for appeals against decisions of licensing authorities) has effect.

(2) On an appeal in accordance with that Schedule against a decision of a licensing authority, a magistrates' court may—

(a) dismiss the appeal,

(b) substitute for the decision appealed against any other decision which could have been made by the licensing authority, or

(c) remit the case to the licensing authority to dispose of it in accordance with the direction of the court,

and may make such order as to costs as it thinks fit."

6. Regulations made pursuant to section 51(3) of the Licensing Act 2003 require the applicant to give notice of the application to the licence holder and each responsible authority, to advertise the application and to invite representations within a period of 28 days. The licensing authority has no power to extend that period (see Corporation of the Hall of Arts and Sciences v The Albert Court Residents' Association [2011] EWCA Civ 430), nor without the consent of the parties may it take into consideration matters other than those referred to in the application or the representations and any information provided in support of them. It follows that the application and any representations received within the prescribed period form the material on which the licensing authority makes its decision. It is Mr. Khan's case that they also define the scope of the magistrates' jurisdiction on an appeal, rather as if they contained the parties' statements of case from which neither is free to depart.
7. An appeal from a decision of the licensing authority lies to the magistrates under section 181(1) and paragraph (8) of Schedule 5 of the Act, but the Act is silent on the scope of the magistrates' jurisdiction and the procedure that is to be followed. However, rule 34 of the Magistrates' Courts Rules 1981 provides that where a statutory appeal lies to a magistrates' court against a decision of a local authority the appeal shall be made by way of complaint, the procedure for which involves calling evidence. Moreover, there is a good deal of authority to support the proposition that an appeal of this kind takes the form of a fresh hearing at which the parties are free to adduce whatever evidence they think fit, subject to the control of the court. In Sagnata Investments Ltd v The Lord Mayor, Aldermen and Citizens of the City of Norwich [1971] 2 Q.B. 614 the applicants sought a licence under the Betting, Gaming and Lotteries Act 1963 for an amusement arcade. The application was rejected by the local authority against whose decision an appeal lay to the Quarter Sessions. The Recorder allowed the appeal and the City Corporation appealed to the Court of Appeal, one issue for decision being whether the Recorder was entitled to hear fresh evidence and make his own findings of fact. The Court of Appeal held that the appeal was by way of a complete rehearing and that he could do so.
8. Sagnata v Norwich Corporation was considered in Rushmoor Borough Council v Richards (unreported, 30^th January 1996), which involved an appeal against the refusal of the local council under the Local Government (Miscellaneous Provisions) Act 1982 to vary the terms of an entertainment licence granted to the proprietor of a nightclub. On the hearing of the appeal the council wished to adduce evidence of events that had occurred between the date of its decision and the date of appeal, which it said demonstrated that the club had been badly run. The magistrates held that they were not entitled to hear the evidence, but Tuckey J. held that the appeal took the form of a rehearing and that magistrates were not restricted to receiving evidence about events that had occurred before the decision under appeal. On the contrary, they were bound to consider all the relevant evidence put before them, whether it related to events before or after the decision under appeal.
9. In R (Hope and Glory Public House Ltd) v City of Westminster Magistrates' Court [2011] EWCA Civ 31 (a decision on the Licensing Act 2003) 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. It is perhaps not surprising in the light of these decisions that Mr. de Mello accepted that the appeal to the magistrates in this case also involved a complete re-hearing.
10. In the present case the application for a review of Mr. Khan's licence was made by the City Council, as a responsible authority, to its own licensing committee, as the local licensing authority. Although such a procedure may seem strange, it is expressly provided for by section 53 of the Act. In the notice of application the grounds for review were stated to be that the licensing objective of protecting children from harm had not been promoted in that the store had been the subject of a failed underage test purchase conducted by Trading Standards officers. The application form itself identified three of the four statutory licensing objectives as being those to which it related: the prevention of crime and disorder, the prevention of public nuisance and the protection of children from harm. The grounds on which the application was made referred to the sale of alcohol to persons under eighteen, which was said to be linked to anti-social behaviour. The Council placed specific reliance on a test purchase by a young person aged a little over sixteen. These shortcomings were said to evidence a general lack of control and understanding on the part of Mr. Khan as to what is required to trade responsibly in accordance with the four licensing objectives.
11. There was no mention in any of the documents before the licensing authority of complaints that Mr. Khan had been trading in alcohol on which duty had not been paid. Accordingly, Mr. de Mello, while accepting that the appeal involved a fresh hearing, submitted that the magistrates had no jurisdiction to consider a complaint of that kind and were therefore not entitled to admit evidence relating to it. He argued that the effect of section 181(2)(b) was to limit the grounds on which the magistrates could base their decision to those which were raised before the licensing authority. Mr. Miller, on the other hand, submitted that 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.
12. In my view section 182(2)(b) does not have the restrictive effect for which Mr. de Mello contended. It makes it clear that the magistrates have the power to make any order of the kind that the licensing authority could have made, but it does not say anything about the grounds on which such an order might be made. That will depend on the evidence before the court. Indeed, the fact that the magistrates can make any order that the licensing authority could have made itself tends to support the conclusion that they are indeed considering the matter completely afresh. The magistrates' function is to consider the application by reference to the statutory licensing objectives untrammelled by any of the regulations that govern the procedure for a review under section 51. They are therefore entitled to consider evidence of events occurring before the application to the licensing authority as well as evidence of events occurring since its decision.
13. The real force of Mr. de Mello's submission lies in the proposition that 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. In principle that must be right, but it does not follow that it can be achieved only by limiting the hearing before the magistrates to the allegations that were made before the licensing authority. 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. It should be remembered that the right to call new evidence cuts both ways: it may benefit the licensee if he can show that some or all of the concerns which led the licensing authority to revoke or restrict his licence have been met. Moreover, the need for a proper opportunity to consider the case applies as much, if not more, to fresh evidence as it does to new grounds of complaint. It can be very difficult to deal adequately with late evidence of which proper notice has not been given and it is therefore a matter of some concern to see that the evidence of Mr. Harwood was admitted by the magistrates despite the fact that Mr. Khan had apparently been given little notice of Council's intention to adduce it. However, that is not the subject of any formal complaint.
14. Having regard to the statutory provisions and to the fact that the appeal is a fresh hearing, I am satisfied that the magistrates are not limited to considering only those grounds of complaint that were raised in the notice of application or the representations before the licensing authority. It is not possible to infer that from section 181(2)(b) and I am satisfied that if that had been intended such a restriction would have been included in the Act itself or the regulations made under it. It is worth noting, however, that the magistrates did not in fact rest their decision on the ground that Mr. Khan may have been involved in selling alcohol on which duty had not been paid. Their reasons for dismissing his appeal were essentially the same as those which had led the licensing authority itself to revoke his licence, namely, poor management of the premises of a kind that was likely to undermine local measures to deter crime and prevent harm to young people. Even if Mr. de Mello's argument were correct, therefore, this is not a case in which the magistrates exceeded their jurisdiction by dismissing the appeal on a ground which had not formed part of the proceedings before the licensing authority. The most that could have been said is that they took into consideration evidence that was not strictly relevant to the issues that arose on the appeal. There is no indication, however, that it affected their decision. They found as a fact that the appellant's premises had been subject to investigation by HMRC and that the investigations were continuing, but they made no findings beyond that, other than to note that the Guidance issued under section 182 of the Act suggests that a review need not be delayed pending the outcome of any criminal proceedings. Their findings about Mr. Khan's approach to the sale of alcohol and the manner in which he conducted his business make it abundantly clear that they would have reached the same conclusion in any event.
15. For these reasons I am satisfied that the magistrates did not exceed their jurisdiction, nor is their decision capable of being challenged on other grounds. I would therefore dismiss Mr. Khan's claim for judicial review.

Lady Justice Black:

16. I agree.

Lord Justice Thorpe:

17. I also agree.