QUEENS BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
(Sitting as a Deputy High Court Judge)
| David Nicholds, Michael Hancock, Christian Thorpe
|- and -
|Security Industry Authority
|Secretary of State for the Home Department
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Official Shorthand Writers to the Court)
Natalie Lieven (instructed by Treasury Solictor) for the Defendants
Crown Copyright ©
"The private security industry is a thriving, diverse industry covering a range of services from manned guarding to alarm systems and from cash-in-transit to wheel clamping. The industry has grown rapidly over recent years as people have taken greater steps to protect themselves and their property. Despite the importance of the activities which the private industry carries out there is no regulation to control those who work in the industry and no standards to which companies have to adhere. We have discovered examples of firms owned by and run by people with serious criminal records. Research has shown that, in some areas, door supervisors and criminal gangs which control them are responsible for drug dealing in clubs. Reputable companies enforce effective standards and self-regulation but less scrupulous companies are able to undermine their best efforts. Voluntary regulation cannot touch this situation and it leaves the police powerless to protect the public. If the private security industry is to take a greater role in our society then the public have a right to be protected from the rogues who exploit the current unenforceable system and to expect certain standards from the companies they choose to provide the services with which they come into contact…."
"1.11 Local registration schemes for door supervisors have been set up in a number of areas to tackle problems where they exist. These are set up in co-operation between local authorities and the police, and applicants for registration usually have to be vetted and successfully complete a relevant training course."
"5.8 There are widespread concerns about criminality among door staff. Assaults are common and as The Police Research Group Paper 86 "Clubs, Drugs and Doormen" showed, door staff can be involved either directly or indirectly in drug dealing in clubs. At present door supervisors are dealt with at a local level through registration schemes. In January 1996, a Home Office Circular (HO 60/95) was issued to all local authorities and police forces offering best practice guidance on setting up such schemes for door staff working at night-clubs and other establishments with a license for public music and dancing. Applicants for registration usually have to be vetted and successfully complete a training course, which is likely to include core elements of legal issues relevant to licensing and powers, social skills, first aid, drugs recognition and fire safety. The circular was drawn up in consultation with representatives of The Association of Chief Police Officers, the local authority associations and the entertainment industry. There are over 100 schemes in operation around the country covering approximately 20,000 door supervisors.
5.9 Registration schemes are not mandatory and not all local authorities operate them. The Government considers that all door supervisors should be licensed to prevent infiltration or intimidation by criminal gangs and to weed out those whose criminal background suggests that they are not suitable for this work. There is likely to be a continuing role for local authority registration schemes to ensure that door supervisors are properly trained and have good links with the local police but the details of this will be for the Authority to decide following the introduction of licensing."
"3.15 The precise details of the criteria for grant of a licence will be for the Authority to determine in consultation with interested parties but are likely to include: consideration of the details of the CRC [Criminal Record Certificate]. The Authority will be required to produce and publish clear guidelines on the criteria for granting or refusing a licence. It is likely that certain serious offences will automatically debar an individual from obtaining a licence but generally the Authority will take into account whether any conviction was relevant, the length of time since the offence occurred, whether there was a pattern of offending and whether the applicant's circumstances had changed since the offence was committed." (emphasis added)
"29.03 Variously described in the past as "a thug in a dicky bow" or a "gorilla in a suit" [with reference to "Safety on the Door: an Evaluation of local administered registration schemes for door supervisors," Abigail Sleat, University of West of England], excoriatingly immortalised in popular culture [references omitted], the door supervisor should now be seen as an integral part of the system of holistic management of the night time economy…..
Today's door supervisors are the eyes and ears of the licensee, and as such are expected to become involved in the many different aspects of running premises designed for entertainment purposes. They are expected to properly welcome customers onto the premises, whilst enforcing the venue's entry conditions in a firm but fair manner. Once the customers are on the premises the door staff are expected to ensure that the evening runs according to everyone's expectations, whilst maintaining order and preventing breaches of the criminal law, licensing laws and house rules. If any of those laws or rules are breached they need to act within the guidelines of the law and company policy to resolve the situation. Occasionally, and as a part of the customer service aspects of the job, door supervisors may be required to administer first aid to anyone who becomes ill or injured on the premises, before proper medical help arrives. They are also required to patrol the premises and to look out for fire hazards or suspicious packages, and need to be able to carry out basic emergency procedures if problems occur. They have to be aware of basic health and safety rules, and must help the licensee to ensure that the venue is safe enough to be open to the public. They are basically "policing" the licensed premises for the management" (Philip Kolvin, Licensed Premises: Law and Practice 2004)
"The City Council was the Licensing Authority for Public Entertainment Licenses under the Local Government (Miscellaneous Provisions) Act 1982. The Council administered this system by way of classification of premises. Class 1 (large scale nightclubs, etc) had a condition imposed requiring the licensee to employ door/security staff only if they were registered with the Local Authority. Registered staff were issued with a badge and registration.
Prior to registration an applicant had to attend a course which had similarities with the current course for SIA staff; a police check was made and if necessary the applicant was interviewed by staff or referred to the Licensing Board. There was no appeal to Magistrates Court but the process was subject to Judicial Review. Most large scale authorities operated a similar system which grew out of prompts from Government Departments. The system was enforced against the Public Entertainments Licensee (breach of conditions).
"29.09 In areas where door supervisor registration schemes were in operation, persons wishing to work within the security function at licensed premises were requested to apply to either the local authority or the local police for a "licence" to do so. They were required to fill out an application form detailing information, so that a decision could be made as to their suitability for the position, at the same time giving permission for a check to be made with regards to any previous convictions that may have been held against them. A decision was then made as to whether they were suitable for the job, and if so they were normally given provisional status so that they could start work as a door supervisor in that area….
29.10 On most schemes the applicants remained on provisional status until they had attended and passed the local training course, after which they received full registration status. Once fully registered, door supervisors were allowed to work at any licensed premises within that area, and were normally requested to wear their registration badges conspicuously wherever they were working in that capacity. They were also usually requested to abide by a code of conduct. Registration could be revoked upon conviction of a criminal offence deemed to justify such a sanction. Most schemes incorporated some form of appeals procedure for applicants who felt that registration had been unfairly refused or revoked.
29.11 Some local authorities attached conditions to public entertainment licenses to enforce the registration schemes, [a practice held lawful by the Court of Appeal in R v Liverpool City Council ex parte Barry,  LLR 310, although the charge for registration fee was held unlawful], and some licensing justices even started attaching similar conditions to on-licenses when they came up for renewal. Other areas initiated voluntary schemes that required none of the above, relying on the goodwill and common sense of licensees and managers to co-operate with the scheme."
The New Regulation
a) to carry out the functions relating to licensing and approvals that are conferred on it by the Act;
b) to keep under review generally the provision of security industry services and other services involving the activities of security operatives;
c) for the purpose of protecting the public, to monitor the activities and effectiveness of persons carrying on businesses providing any such services as are mentioned in paragraph (b)….
d) to set or approve standards of conduct, training and levels of supervision for adoption by:
1) those who carry on businesses providing security industry services or other services involving the activities of security operatives; and
2) those who are employed for the purposes of such businesses.
(a) guarding premises against unauthorized access or occupation, against outbreaks of disorder or against damage;
(b) guarding property against destruction or damage, against being stolen or against being otherwise dishonestly taken or obtained;
(c) guarding one or more individuals against assault or against injuries that might be suffered in consequence of the unlawful conduct of others.
"(1) It shall be the duty of the Authority, before granting any licences, to prepare and publish a document setting out –(a) the criteria which it proposes to apply in determining whether or not to grant a licence; and(b) the criteria which it proposes to apply in exercising its powers under this Act to revoke or modify a licence.
(2) The Authority may from time to time revise the document for the time being setting out the criteria mentioned in subsection (1)(a) and (b): and, if it does so, it shall publish the revised document.
(3) The criteria set out by the Authority under this section –(a) shall include such criteria as the Authority considers appropriate for securing that the persons who engage in licensable conduct are fit and proper persons to engage in such conduct;(b) may include such criteria as the Authority considers appropriate for securing that those persons have the training and skills necessary to engage in the conduct for which they are licensed; and(c) may also include criteria relating to such matters as the Authority thinks fit.
(4) In setting out any criteria or revised criteria under this section the Authority may provide for different criteria to apply –(a) In relation to licences for different descriptions of licensable conduct; and(b) In relation to the initial grant of a licence and in relation to a further grant to the same licensee for the purpose of renewing an earlier licence.
(5) Criteria or revised criteria set out under this section shall not have effect for the purposes of this Act unless the Secretary of State has approved them.
(5A) Before giving approval under subsection (5), the Secretary of State shall consult the Scottish Ministers.
(6) The publication in accordance with this section of any document setting out any criteria or revised criteria must be in such manner as the Authority considers appropriate for bringing it to the attention of the persons likely to be affected by it".
"76. The offences have been grouped into the generic categories generally recognised within the criminal justice system (eg violence, dishonesty, drugs etc). The SIA [the Authority] considers that the majority of offences in the categories directly relating to violence, abusive behaviour, theft, fraud, sex and drugs are serious. Such offences go to the heart of what the SIA wishes to achieve in removing workers with these types of offences from the private security industry for particular periods, and in enhancing the industry's profile and achieving long term public confidence. They are particularly relevant to the door supervision sector because of the nature of interaction between a door supervisor and members of the public, which is further influenced by alcohol, and places a unique pressure on door supervisors to be able to react rationally and calmly in often abusive and hostile situations."
"80. The end of sentence restrictions is defined on page 41 of the Published Criteria:" By free of the effects of a conviction, caution or warning we mean that we will start counting the time elapsed from the end of the sentence or penalty as appropriate - not from the date when you were sentenced or when the offence or offences were committed."
Reductions in the sentence or penalty imposed (such as release from prison early on good behaviour or revocation of a community service order) are not taken into account (other of course than successful appeal), and the SIA [the Authority] will still regard the offence as relevant until the final date when the sentence or penalty would have ended. For example, where a conviction on 1 January 2000 led to 12 months imprisonment, the sentence restrictions would be deemed to end on 31 December 2000. Where the sentence or penalty imposed is a fine, caution or warning, then the sentence restrictions are deemed to end on the date of conviction because no additional time penalty is given. Due to the difficulty in calculating the end of community sentence orders issued in hours (the SIA cannot determine from a CRB disclosure when the order was completed), the end of sentence restrictions are also taken to be the date of conviction for such orders."
The Grounds of Challenge
The Third Ground
"The general rule is that anyone who has to exercise a statutory discretion must not "shut his ears to an application"…..I do not think there is any great difference between a policy and a rule. There may be cases where an officer or authority ought to listen to a substantial argument reasonably presented urging a change of policy. What the authority must not do is to refuse to listen at all. But a Ministry or large authority may have had to deal already with a multitude of similar applications and then they will almost certainly have evolved a policy so precise that it could well be called a rule. There can be no objection to that, provided the authority is always willing to listen to anyone with something new to say…."
"The formulation of policies is a perfectly proper course for the provision of guidance in the exercise of an administrative discretion. Indeed policies are an essential element in securing the coherent and consistent performance of administrative functions."
"The Council are perfectly entitled to have a policy. Fairness, after all, demands that like cases should be treated alike, and the policy will promote that objective".
"The Home Secretary's discretion as to release is very wide. It is the type of discretion which calls out for the development of policy as to the way it will be exercised. This should assist in providing consistency and certainty which are highly desirable in an area involving the administration of justice where fairness is particularly important."
The First Ground
"Protection of Property
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with general interest or to secure the payment of taxes or other contributions or penalties."
1) Were the relevant permissions "possessions" for the purpose of AIPI?
2) If so, did the Published Criteria interfere with the claimants' rights to enjoy the "possessions"? and
3) If so, were the Published Criteria justified as a measure proportionately necessary to promote the general interest?
"The Court recalls that the notion "possession" (in French:biens) in Article 1 of Protocol 1 has an autonomous meaning which is certainly not limited to ownership of physical goods: certain other rights and interests constituting assets can also be regarded as "property rights" and thus as "possessions", for the purposes of this provision." (Gasus Dosier-und-Fordertechnik GmbH v Netherlands, Judgment of 23 February 1995, Series A No. 306-B; (1995) 20 EHRR 403, para. 53 of the judgment)
"It is sufficient to say that we reject the breadth of the claims as to the loss of their "livelihood". Strasbourg case law, while stating that a professional man's clientele may form part of his possessions, as may the goodwill of a business, has very clearly ruled that any element of a claim that relates to loss of future income does not qualify in this respect, unless an enforceable claim to future income already exists. The Divisional Court set out the relevant Strasbourg case law in paragraphs 170-172 of its judgment. We agree with their approach, including their unwillingness to follow the judgment of the Inner House of the Court of Session in Adams [Adams v Advocate-General for Scotland  UK HRR 1189, Ct.Sess (OH); Adams v Advocate-General for Scotland  SC 665, Scot CS 127, Ct. Sess (OH)] at paragraph 97, in so far as it may have suggested that the livelihood of a self-employed person occupies some middle position between marketable goodwill and future income"(paragraph 114).
"The Government argued that a licence to serve alcoholic beverages could not be considered to be a "possession" within the meaning of Article 1 of the Protocol. This provision was therefore, in their opinion, not applicable to the case. Like the Commission, however, the Court takes the view that the economic interests connected with the running of Le Cardinal were "possessions" for the purposes of Article 1 of the Protocol. Indeed the Court has already found that the maintenance of the licence was one of the principal conditions for the carrying on of the applicant company's business, and that its withdrawal had adverse effects on the goodwill and value of the restaurant." (emphasis added).
"70 In approaching this issue [the fair balance between the public interest and the protection of fundamental rights], as noted in R v Johnstone  UKHL 28 para 51, courts should have in mind that theirs is a reviewing role. Parliament is charged with the primary responsibility for deciding whether the means chosen to deal with a social problem are both necessary and appropriate. Assessment of the advantages and disadvantages of the various legislative alternatives is primarily a matter for Parliament. The possible existence of alternative solutions does not in itself render the contested legislation unjustified: see the Rent Act case of Mellacher v Austria (1989) 12 EHRR 391, 411, para 53. The Court will reach a different conclusion from the legislature only when it is apparent that the legislature has attached insufficient importance to a person's Convention right. The readiness of a court to depart from the views of the legislature depends upon the circumstances, one of which is the subject matter of the legislation. The more the legislation concerns matters of broad social policy, the less ready will be a court to intervene".
"63 When a court makes this value judgment the facts will often speak for themselves. But sometimes the court may need additional background information tending to show, for instance, the likely practical impact of the statutory measure and why the course adopted by the legislature is or is not appropriate. Moreover, as when interpreting a statute, so when identifying the policy objective of a statutory provision or assessing the "proportionality" of a statutory provision, the court may need enlightenment on the nature and extent of the social problem (the "mischief") at which the legislation is aimed. This may throw light on the rationale underlying the legislation.
64 This additional background material may be found in published documents, such as a government white paper….."