QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF LONDON BOROUGH OF|
|HAMMERSMITH AND FULHAM||Appellant|
|FOOD CITY EXPRESS LTD||Respondent|
WordWave International Limited
A Merrill Communications Company
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
The respondent was not represented and did not attend
Crown Copyright ©
"5 I am not a local resident though I have sat in the area for over 9 years. To have the first oral inter partes hearing by a judge and not the local authority sub-committee seemed to go against the spirit of the legislation especially where it had been made clear that Mr Salim would attend and did attend. I had in mind the case of R v Camberwell Green ex p Ibrahim  JPR 402 where Taylor J described a 45-minute wait before commencing a criminal case in absentia as 'precipitate' although in court I could not actually locate the decision.
6 In law, the sub-committee was entitled to act as it did. However after 18 years on the bench, common sense has taught me that given London's traffic problems, parking problems and transport problems ten minutes is not long enough to wait before proceeding in absence especially where a person's livelihood is involved. (I was told that the lateness was due to child care problems. That does not depart from the generality of the above.)
7 Counsel for the London Borough of Hammersmith and Fulham was unable to cite any case in support of their contention that I had actually to decide the appeal (that is to hear all the evidence and submissions) before I could remit for a re-hearing. I was however referred to paragraph 12.6 of the guidance issued under Section 182 of the Licensing Act 2003 by the Department of Culture, Media and Sport. Since I have decided the council's process was flawed and the legislation was designed to put the decisions in the hands of the residents, I decided to remit the appeal to the sub-committee for a truly inter partes oral hearing. I also held that the time before commencing the hearing in absentia - 10 minutes - was so short as to make a fair hearing impossible under Article 6."
"(1) Was I correct in deciding I had the power to remit the case under Section 181 of the Licensing Act 2003 without hearing the evidence and submissions and thus determining the appeal?
(2) If the answer to (1) is yes, was I correct in deciding that - given the prevailing road and rail problems in the borough - ten minutes was insufficient time to wait before proceeding when counsel was aware that a representative from the company signified their intention to attend, thus right to have remitted the case?
(3) Was I right that Article 6 demands a longer period to wait than ten minutes where a person who wishes to be heard has signified an intention to attend?"
"In response to [the Metropolitan Police and the Public Protection Pollution Service's] representations, the applicant's agents (J & H Licensing Consultants) sent a letter to the police, Public Protection Pollution Service and the licensing authority on 17 June 2007, a copy of which was included in the sub-committee report. The applicant's agents suggested an additional condition which was included in the sub-committee report. The applicant's agents also stated that the premises are already open 24 hours a day which is not currently reflected on the existing licence. When the allocated time to commence the hearing was reached the applicant had not appeared. The sub-committee allowed the applicant further time to attend before requesting legal advice as to whether the application could be heard in the absence of the applicant. Heath Robinson - solicitor for the council - advised the sub-committee that Regulation 20 (2) of the Licensing Act 2003 (Hearings) Regulations 2005 states as follows:
'(2) If a party who has not so indicated fails to attend or be represented at a hearing the authority may -
(a) where it considers it to be in the public interest to adjourn the hearing to a specified date, or
(b) hold the hearing in the party's absence.'.
Heath Robinson also advised the sub-committee that Regulation 20 (3) of the Licensing Act 2003 (Hearings) Regulations 2005 states as follows:
'(3) Where the authority holds the hearing in the absence of the party the authority shall consider at the hearing of the application the representations or notice made by that party.'
The sub-committee - after noting the legal advice given - decided to hold the hearing in the applicant's absence. The sub-committee considered at the hearing of the application representations or notes made by the applicant."
"(1) A licensing committee may establish one or more sub-committees consisting of three members of the committee;
(2) Regulations may make provision for -
(a) the proceedings of licensing committees and their sub-committees (including provision about the validity of proceedings in forum meetings);
(b) public access to the meetings of those committees and sub-committees;
(3) Subject to any such regulations each licensing committee may regulate its own procedure and that of its sub-committees."
"(1) Regulations may prescribe the procedure to be followed in relation to a hearing held by a licensing authority under this Act and in particular may -
(a) require a licensing authority to give notice of hearings to such persons as may be prescribed;
(b) make provision for expedited procedures in urgent cases;
(c) make provision about the rules of evidence which are to apply to hearings;
(d) make provision about the legal representation at hearings of the parties to it;
(e) prescribe the period within which an application in relation to which a hearing is being held must be determined or any other step in the procedure must be taken."
"(1) If a party has informed the authority that it does not intend to attend or be represented at a hearing the hearing may proceed in his absence;
(2) If a party who has not so indicated fails to attend or be represented at a hearing the authority may -
(a) where it considers it to be necessary in the public interest adjourn the hearing to a specified date; or
(b) hold the hearing in the party's absence.
(3) Where the authority holds the hearing in the absence of a party the authority shall consider at the hearing the application, representations or notice made by that party;
(4) Where the authority adjourns the hearing to a specified date it must forthwith notify the parties of the date, time and place to which the hearing has been adjourned."
"Where a licensing authority -
(a) rejects an application for a premises licence under Section 18;
(b) rejects in whole or in part an application to vary a premises licence under Section 35;
(c) rejects an application to vary a premises licence to specify an individual as the premises supervisor under Section 29; or
(d) rejects an application to transfer a premises licence under Section 44 the applicant may appeal against the decision."
"(1) Schedule 5 which makes provision for appeals against decisions of licensing authorities has effect;
(2) On appeal in accordance with that schedule against a decision of a licensing authority the Magistrates' Court may -
(a) dismiss the appeal; or
(b) substitute for the decision appealed against any other decision that 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 and may make such order as to costs as it thinks fit."
"(1) It is contended that the district judge exceeded his jurisdiction and erred in law in remitting the appeal back to the licensing sub-committee for a re-hearing. He accepted - see paragraph 6 of the case stated - that the licensing sub-committee acted lawfully in hearing the application in the absence of Mr Salim in circumstances where he had failed to attend the hearing despite the sub-committee waiting ten minutes for him to arrive.
(2) Having accepted that the sub-committee was entitled in law to act as it did, he was not permitted to remit the application for a re-hearing because he considered the process was nonetheless flawed because the sub-committee had proceeded in Mr Salim's absence without waiting for some indeterminate time for him to arrive (paragraph 7 case stated).
(3) Once the district judge acknowledged as he had to - having regard to the legislation and the proceedings before the sub-committee - that it had acted lawfully, he exceeded his powers by remitting the matter back for a re-hearing because he personally (?) considered despite the lawfulness of the sub-committee's actions that it was desirable to wait longer than the sub-committee had, in its judgment, done so.
(4) In the circumstances the district judge was required to hear the substantive appeal against the decision of the sub-committee and not to judge or go behind the exercise of discretion of a properly constituted sub-committee acting lawfully.
(5) The district judge further erred in applying his own yardstick as to how long the sub-committee should wait. The question of the exercise of the sub-committee's discretion and conduct of its proceedings was not a matter for him, first, because he accepted that it had acted lawfully and, second, because in any event such an act should have been challenged by way of judicial review if it had been considered that there was any basis for doing so which there was not.
(6) It was unreasonable and outside the scope of his jurisdiction to remit the matter for re-hearing because he would have exercised his own discretion differently if he had been required to await the applicant's attendance. The sub-committee was entitled to act in the way that it did. The district judge was not entitled to interfere with the workings of local government in such circumstances. Furthermore in the circumstances of this case he had regard to irrelevant considerations. The question of traffic and such issues were not advanced by the applicant as the cause of his delay and he had not indicated he would be late. The sub-committee had not had any intimation as to why he had not attended on time. The sub-committee nonetheless waited ten minutes for him to arrive. Significantly even at the hearing before the district judge the applicant did not rely on traffic difficulties but child care concerns (see paragraph 6 of the case stated).
(7) The district judge erred in his application of Article 6 of the ECHR. The Licensing Act (Regulations) allowed the sub-committee to proceed in the absence of the applicant. There is no requirement by the statute or policy that its sub-committee must wait a particular period of time before proceeding in the absence of the applicant. The appeal before the district judge was a de novo hearing. Any deficiencies considered to exist were capable of remedy through the hearing to be dealt with before him. In the circumstances he was not entitled to remit the matter for a re-hearing for the reasons he contended in his decision. The decision of the district judge was flawed.
(8) In respect of each of the questions posed in the case stated, we respectfully submit the answer is no."
"I must however for a moment turn to the question of the appeal to Quarter Sessions. What sort of appeal is it? Is the recorder to look at the reasons of the committee and to give effect to them unless they are so lacking in ground or so obvious on the face of them that certiorari would lie?
The position seems to me to be so well established that it is not susceptible of a little subtlety. The hearing of an appeal at Quarter Sessions is a re-hearing. It cannot be less so if the decision from which the appeal is brought is an administrative decision by the committee of a local authority ..... before which no one took an oath or was cross-examined. After all, any appeal to the Court of Appeal is technically a re-hearing. New evidence can be adduced and the whole conduct of the hearing in the lower court supervised ..... I think that the recorder must hear evidence; all the more so because none was called before the committee. I think he must give effect to that evidence and reach what he regards as a just conclusion."
"Since I decided the council's process was flawed and the legislation was designed to put the decisions in the hands of the residents, I decided to remit the appeal to the sub-committee for a true inter partes oral hearing (emphasis added)."
"To have the first inter partes hearing by a judge and not the local authority's sub-committee seemed to go against the spirit of the legislation especially where it had been clear that Mr Salim would attend and did attend."
In my judgment that is an incorrect way of looking at what occurred. If he had proceeded to have an oral inter partes hearing that would not have been the first oral inter partes hearing because the fact that Mr Salim - or that the respondent through Mr Salim - was not present did not deprive the hearing in front of the sub-committee of the characteristics of an oral inter partes hearing.
"Was I correct in deciding I have the power to remit the case under Section 181 without hearing the evidence and submissions and thus determined the appeal?"
In my judgment the answer to that question is that yes he was correct in deciding that he had the power to remit the case, but that is subject to the further holding which I make that he was not correct in deciding that it was a lawful exercise of his discretion so to do for the reasons which I have given.
"If the answer to 1 is yes, was I correct in deciding that given the prevailing road and rail problems in the borough ten minutes was insufficient time to wait before proceeding when the council was aware that a representative from the company had signified an intention to attend and thus right to have limited the case?"
As I indicated in argument, it struck me that that is really, as formulated explicitly, an irrelevant question insofar as the relevant decision that he made was not a decision that ten minutes was insufficient time, which was not a matter he was required to decide. The relevant decision for him was whether or not to exercise his discretion to remit.
"Was I right that Article 6 demands a longer wait than ten minutes where a person who wishes to be heard has signified an intention to attend?"
I decline to answer that question as posed because, as posed, it is plainly referable to the decision of the local authority sub-committee. As I have indicated, in my judgment there is no requirement for a longer wait than ten minutes in respect of a hearing of the local authority provided that - and given that - there is an effective and adequate appeal to the Magistrates' Court. If by question 3 was meant "was I right that Article 6 demands a longer wait than ten minutes at a hearing of a licensing committee where a person who wishes to be heard has signified an intention to attend?" then I would answer that question no for the reasons I have given.