CO/5942/2004
Neutral Citation Number: [2005] EWHC 912 (Admin)
IN THE HIGH COURT OF JUSTICE	
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
The Strand
London
WC2A 2LL

Friday, 29 April 2005
B e f o r e:

MR  JUSTICE  MITTING

- - - - - - -

THE CHIEF OFFICER OF POLICE FOR THE COUNTY OF LEICESTERSHIRE

Appellant
- v -

SHIRLEY  DAWN  TATAM

Respondent
- - - - - - -
Computer Aided Transcription by
Smith Bernal, 190 Fleet Street, London EC4
Telephone No: 020 7421 4040
(Official Shorthand Writers to the Court)
- - - - - - -

MR DAVID MONK (instructed by Messrs Poppleston Allen, Nottingham NG1 1LS) appeared on behalf of THE APPELLANT

MR MARTIN F WALSH (instructed by Messrs Halliwells, Manchester, M2 2JS) appeared on behalf of THE RESPONDENT
- - - - - - -

J U D G M E N T

Friday, 29 April 2005

MR JUSTICE MITTING:   

1.	This is an appeal by way of case stated from the decision of the Leicestershire Licensing Committee sitting at Coalville on 1 December 2004 that the respondent, Shirley Dawn Tatam, was a fit and proper person to hold a justices on-licence.

2.	Section 3(1) of the Licensing Act 1964 provides:

		"Licensing justices may grant a justices' licence to any such person not disqualified under this or any other Act from holding a justices' licence, as they think fit and proper."

3.	The facts as found by the Licensing Committee were that the respondent had acted as licensee at the Ashby Woulds public house under a Deemed Interim Authority from 5 April 2004.  She had been originally assessed by the appellant, the Chief Officer of Police for the County of Leicestershire, as suitable to hold the licence in a questionnaire dated 15 April 2004.  The public house was one apparently that had not previously been well run.

4.	On 24 May 2004, local authority officers visited the premises and had a discussion with the respondent.  The justices' findings recorded two different versions of what occurred on that date.  It was the appellant's case that the respondent banged her finger on the table during a discussion regarding public entertainment licensing and called the local authority officers "stupid" and "incompetent" and told them that they should not return or she would "smack" them.  Her body language was said to be aggressive and it was said that she had asked her partner to see them out or she would "trip them up".  

5.	On 15 June 2004, when interviewed about that matter by police officers, the respondent admitted that she had tapped her fingers on the table and had asked her partner to escort local authority officers out, but denied threatening them or saying that she would trip them up on the way out.

6.	The justices heard evidence from both sides as to what happened on 24 May and in a clear and unequivocal finding said that they preferred the evidence of the officers of the local authority and "disbelieved" the respondent.  They went on to conclude that she was frustrated because she felt that the local authority officers had not been as efficient as she would have wished.  

7.	The Committee also heard evidence from customers and read a letter from the owner of the premises, Avebury Taverns.  They concluded that "the premises had been well run since the respondent took over at the premises."

8.	The appellant submitted that by reason of the untruths told to the police on 15 June, reiterated to the Licensing Committee, the respondent lacked the probity necessary in a person who would be fit and proper to hold a justices' licence.  The Licensing Committee noted that submission.  They also noted a submission made on behalf of the respondent that, notwithstanding their finding, they still had a discretion to decide who was a fit and proper person to hold the licence.  Their conclusion was short and to the point:

		"We found the respondent a fit and proper person and granted the application taking account of our findings that the premises had, notwithstanding the incident on 24 May, been well run for almost five months."

9.	Fortunately for any court reviewing the decision of the Licensing Committee, the law on who is and who is not a fit and proper person was stated with clarity by Lord Bingham of Cornhill giving the leading speech of the Judicial Committee of the House of Lords in Regina v Crown Court at Warrington, Ex parte RBNB [2002] 1 WLR 1994.  Having previously set out the submissions on behalf of the appellant, at paragraph 17 Lord Bingham said:

		".... it diverts attention from the simple and specific question which, before the justices in the Crown Court, had to be asked and answered: was Mr Kehoe a fit and proper person to be the licensee of the Weavers Hotel?  The factual findings already recited already make it plain that he was, personally and professionally, a fit and proper person.  In other words, he could be relied on to run the licensed premises in a competent and law-abiding manner, in accordance with the conditions of any licence granted."

It is thus plain that the heart of the test to be applied by the justices is whether or not the licensee can be relied on to run the licensed premises in a competent and law-abiding manner.

10.	The justices expressly found that.  The fact that the respondent may not have been frank with the police or with the court is a matter to her discredit and is something which the justices plainly were entitled to, and indeed should have, taken into account.  The case which they have stated does not indicate that they did not take those matters into account.  The only reasonable inference to be drawn from the case is that, having taken those matters into account, they nonetheless concluded that she was a fit and proper person because she had by her conduct demonstrated that she could be relied on to run the licensed premises in a competent and law-abiding manner for the last five months.

11.	Mr Monk submits that that decision was perverse.  Indeed he has to make that submission to establish any error of law on the part of the justices.  It is not enough to submit that the justices failed to give sufficient weight to factors.  He must submit that, on the material to which I have referred, the justices reached a decision which no reasonable Licensing Committee could have reached.  For the reasons which I have already explained that is not a conclusion to which I would possibly come.  The justices' reasons seem to me to be simple but entirely adequate, and their conclusion unimpeachable.  For those reasons this appeal is dismissed.

12.	The question posed by the justices at the end of the case is:

		"Were we entitled to find the respondent a fit and proper person to hold a Justices' Licence in the circumstances?"

The answer is "Yes".

MR WALSH:  My Lord, there is an application for costs against the appellant.  I wonder if I can address you at a little length about it?

MR JUSTICE MITTING:  Yes.

MR WALSH:  The position is this, that under section 193(b) of the Licensing Act, justices have a discretion to make an award for costs in any licensing application in respect of licensed premises.  No application was made, and certainly no application was granted when this matter came before the justices.

MR JUSTICE MITTING:  No, in the light of the way the case went it was hardly surprising.

MR WALSH:  Absolutely, and indeed there is authority for saying that the police statutory authority should not be penalised in costs when they bring genuine concerns to the attention of Licensing Justices.  The situation is different here.  The justices in a measured and balanced way concluded that the licensee was a fit and proper person to hold a licence.  No leave was required for the police to proceed with this appeal and the licensee is effectively under an obligation to respond to it.  In those circumstances, in the light of your Lordship's judgment, I would ask for an order for costs in this case.

MR JUSTICE MITTING:  Is there a schedule or not?

MR WALSH:  No, there is not.  I would ask for an assessment in default of agreement.

MR JUSTICE MITTING:  Thank you.

MR MONK:  My Lord, the only point I can make in response to that is this.  As your Lordship has said, there were matters in the court below to the discredit of the licensee, and against the background of those matters of discredit and the, in my submission, justifiable concerns that the Leicestershire Constabulary had about this matter, costs being within the discretion of the court, the application for costs should be refused.

MR JUSTICE MITTING:  Thank you.  I order that the appellant pay the costs of the respondent.  I do so because, although the appellant was undoubtedly right to bring these matters of concern before the Licensing Committee, by pursuing this appeal it went well beyond the function that it could pursue without risk as to costs.  This was an appeal which, for the reasons which I have indicated, never stood any prospect of success.  It should not have been brought and the respondent is entitled to have the costs of resisting it.  They will be assessed if not agreed.

	______________________________________