QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE OWEN
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Professor R Light (instructed by the Respondent's Legal and Democratic Services) appeared on behalf of the Respondent.
Crown Copyright ©
"A person commits an offence if (a) he carries on or attempts to carry on a licensable activity on or from any premises otherwise than under and in accordance with an authorisation, or (b) he knowingly allows a licensable activity to be so carried on."
"(1) Section 16 of the Licensing Act specifies a restricted list of persons who may apply for a premises licence. The only basis on which the appellant could apply was as a person who carries on or proposes to carry on a business which involves use of a premises for licensable activities to which the application relates; (2) I am satisfied that use of the term "involves" denotes a broad range of business including that of a landlord receiving rent from premises being used for such purpose as in this case; (3) In making the application for the licence, the appellant must have considered itself to be carrying on a business which involves use of premises for licensable activities; (4) The grant of premises licences and enforcement of any conditions in them are fundamental to the licensing system and enforcement of it. To find otherwise would be to undermine the whole basis of the licensing regime and to negate the effect of the offences in section 136(1)."
"(1) for the purposes of section 136(1)(a) of the Licensing Act 2003, are the acts of third parties imputed to the premises licence holder as a matter of law? (2) was I right to find in the case that the appellant, as premises licence holder, was carrying on the licensable activities as charged?"
"A person who carries on or proposes to carry on a business which involves the use of the premises for the licensable activities to which the application relates."
"136 Unauthorised licensable activities
(1) A person commits an offence if—
(a) he carries on or attempts to carry on a licensable activity on or from any premises otherwise than under and in accordance with an authorisation, or
(b) he knowingly allows a licensable activity to be so carried on.
(2) Where the licensable activity in question is the provision of regulated entertainment, a person does not commit an offence under this section if his only involvement in the provision of the entertainment is that he—
(a) performs in a play,
(b) participates as a sportsman in an indoor sporting event,
(c) boxes or wrestles in a boxing or wrestling entertainment,
(d) performs live music,
(e) plays recorded music,
(f) performs dance, or
(g) does something coming within paragraph 2(1)(h) of Schedule 1 (entertainment similar to music, dance, etc.).
(3) Subsection (2) is to be construed in accordance with Part 3 of Schedule 1.
(4) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding £20,000, or to both.
(5) In this Part "authorisation" means—
(a) a premises licence,
(b) a club premises certificate, or
(c) a temporary event notice in respect of which the conditions of section 98(2) to (4) are satisfied."
"139 Defence of due diligence
(1) In proceedings against a person for an offence to which subsection (2) applies, it is a defence that—
(a) his act was due to a mistake, or to reliance on information given to him, or to an act or omission by another person, or to some other cause beyond his control, and
(b) he took all reasonable precautions and exercised all due diligence to avoid committing the offence.
(2) This subsection applies to an offence under—
(a) section 136(1)(a) (carrying on unauthorised licensable activity) …."
The Construction of Section 136(1)(a)
"It is suggested that the use of the term 'involves' might denote a broad range of businesses including that of a landlord receiving rent from a premises being used for such purpose, an owner of such a business, a local authority, the holder of a franchise or a tenant."
I agree that the statutory expression is broad enough to cover the case where a freehold owner carries on the business of letting premises to tenants on the basis that the tenant will carry on licensable activities at the premises. But the landlord's business in such a case is, in principle, distinct from the activities carried on by the tenant, and I regard it as a complete fallacy to merge the two elements together and to treat the landlord as automatically carrying on the licensable activities at the premises.
The Deputy District Judge's Decision
MR JUSTICE OWEN: I agree.
LORD JUSTICE RICHARDS: We will grant you a defendant's costs order in respect of the Magistrates Court and this court, but we will leave the amounts to be determined by the appropriate authorities.