QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF HARPERS LEISURE INTERNATIONAL LIMITED||Claimant|
|(1) CHIEF CONSTABLE OF SURREY|
|(2) GUILDFORD BOROUGH COUNCIL||Defendants|
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
Mr P Kolvin QC (instructed by Guildford Borough Council) appeared on behalf of the Second Defendant
The First Defendant did not attend and was not represented
Crown Copyright ©
"(1) For the purposes of this Act the following are licensable activities --
(a) the sale by retail of alcohol,
(b) the supply of alcohol by or on behalf of a club to, or to the order of, a member of the club,
(c) the provision of regulated entertainment, and
(d) the provision of late night refreshment."
Section 3 defines "Licensing authorities", and that need not be set out. The most relevant sections in this context are 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.
(3) In carrying out its licensing functions, a licensing authority must also have regard to --
(a) its licensing statement published under section 5, and
(b) any guidance issued by the Secretary of State under section 182 . . .
6. Licensing committees
(1) Each licensing authority must establish a licensing committee consisting of at least ten, but not more than fifteen, members of the authority . . .
7. Exercise and delegation of functions
(1) All matters relating to the discharge by a licensing authority of its licensing functions are, by virtue of this subsection, referred to its licensing committee and, accordingly, that committee must discharge those functions on behalf of the authority . . .
9. Proceedings of licensing committee
(1) A licensing committee may establish one or more sub-committees consisting of three members of the committee.
(2) Regulations may make provision about --
(a) the proceedings of licensing committees and their sub-committees (including provision about the validity of proceedings and the quorum for meetings),
(b) public access to the meetings of those committees and sub-committees,
(c) the publicity to be given to those meetings,
(d) the agendas and records to be produced in respect of those meetings, and
(e) public access to such agendas and records and other information about those meetings.
(3) Subject to any such regulations, each licensing committee may regulate its own procedure and that of its sub-committees . . .
10. Sub-delegation of functions by licensing committee etc
(1) A licensing committee may arrange for the discharge of any functions exercisable by it --
(a) by a sub-committee established by it, or
(b) subject to subsection (4), by an officer of the licensing authority . . .
13. Authorised persons, interested parties and responsible authorities . . .
(3) 'Interested party' means any of the following --
(a) a person living in the vicinity of the premises,
(b) a body representing persons who live in that vicinity,
(c) a person involved in a business in that vicinity,
(d) a body representing persons involved in such businesses.
(4) 'Responsible authority' means any of the following --
(a) the chief officer of police for any police area in which the premises are situated,
(b) the fire authority for any area in which the premises are situated,
(c) the enforcing authority within the meaning given by section 18 of the Health and Safety at Work etc Act 1974 for any area in which the premises are situated,
(d) the local planning authority within the meaning given by the Town and Country Planning Act 1990 (c.8) for any area in which the premises are situated,
(e) the local authority by which statutory functions are exercisable in any area in which the premises are situated in relation to minimising or preventing the risk of pollution of the environment or of harm to human health,
(f) a body which --
(i) represents those who, in relation to any such area, are responsible for, or interested in, matters relating to the protection of children from harm, and
(ii) is recognised by the licensing authority for that area for the purposes of this section as being competent to advise it on such matters,
(g) any licensing authority (other than the relevant licensing authority) in whose area part of the premises is situated,
(h) in relation to a vessel . . .
18. Determination of application for premises licence
(1) This section applies where the relevant licensing authority --
(a) receives an application for a premises licence made in accordance with section 17, and
(b) is satisfied that the applicant has complied with any requirement imposed on him under subsection (5) of that section.
(2) Subject to subsection (3), the authority must grant the licence in accordance with the application subject only to --
(a) such conditions as are consistent with the operating schedule accompanying the application, and
(b) any conditions which must under section 19, 20 or 21 be included in the licence.
(3) Where relevant representations are made, the authority must --
(a) hold a hearing to consider them, unless the authority, the applicant and each person who has made such representations agree that a hearing is unnecessary, and
(b) having regard to the representations, take such of the steps mentioned in subsection (4) (if any) as it considers necessary for the promotion of the licensing objectives . . .
(6) For the purposes of this section, 'relevant representations' means representations which --
(a) are about the likely effect of the grant of the premises licence on the promotion of the licensing objectives,
(b) meet the requirements of subsection (7),
(c) if they relate to the identity of the person named in the application as the proposed premises supervisor, meet the requirements of subsection (9), and
(d) are not excluded representations by virtue of section 32 (restriction on making representations following issue of provisional statement).
(7) The requirements of this subsection are --
(a) that the representations were made by an interested party or responsible authority within the period prescribed under section 17(5)(c),
(b) that they have not been withdrawn, and
(c) in the case of representations made by an interested party (who is not also a responsible authority), that they are not, in the opinion of the relevant licensing authority, frivolous or vexatious."
"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.
(2) Subsection (1) is subject to regulations under section 54 (form etc of applications etc).
(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.
(4) The relevant licensing authority may, at any time, reject any ground for review specified in an application under this section if it is satisfied --
(a) that the ground is not relevant to one or more of the licensing objectives, or
(b) in the case of an application made by a person other than a responsible authority, that --
(i) the ground is frivolous or vexatious, or
(ii) the ground is a repetition.
(5) For this purpose a ground for review is a repetition if --
(a) it is identical or substantially similar to --
(i) a ground for review specified in an earlier application for review made in respect of the same premises licence and determined under section 52, or
(ii) representations considered by the relevant licensing authority in accordance with section 18, before it determined the application for the premises licence under that section, or
(iii) representations which would have been so considered but for the fact that they were excluded representations by virtue of section 32, and
(b) a reasonable interval has not elapsed since that earlier application for review or the grant of the licence (as the case may be).
(6) Where the authority rejects a ground for review under subsection (4)(b), it must notify the applicant of its decision and, if the ground was rejected because it was frivolous or vexatious, the authority must notify him of its reasons for making that decision.
(7) The application is to be treated as rejected to the extent that any of the grounds for review are rejected under subsection (4).
Accordingly the requirements imposed under subsection (3)(a) and (b) and by section 52 (so far as not already met) apply only to so much (if any) of the application as has not been rejected.
52. Determination of application for review
(1) This section applies where --
(a) the relevant licensing authority receives an application made in accordance with section 51,
(b) the applicant has complied with any requirement imposed on him under subsection (3)(a) or (d) of that section, and
(c) the authority has complied with any requirement imposed on it under subsection (3)(b) or (d) of that section.
(2) Before determining the application, the authority must hold a hearing to consider it and any relevant representations.
(3) The authority must, having regard to the application and any relevant representations, take such of the steps mentioned in subsection (4) (if any) as it considers necessary for the promotion of the licensing objectives.
(4) The steps are --
(a) to modify the conditions of the licence;
(b) to exclude a licensable activity from the scope of the licence;
(c) to remove the designated premises supervisor;
(d) to suspend the licence for a period not exceeding three months;
(e) to revoke the licence;
and for this purpose the conditions of the licence are modified if any of them is altered or omitted or any new condition is added.
(5) Subsection (3) is subject to sections 19, 20 and 21 (requirement to include certain conditions in premises licences).
(6) Where the authority takes a step mentioned in subsection (4)(a) or (b), it may provide that the modification or exclusion is to have effect for only such period (not exceeding three months) as it may specify.
(7) In this section 'relevant representations' means representations which --
(a) are relevant to one or more of the licensing objectives, and
(b) meet the requirements of subsection (8).
(8) The requirements are --
(a) that the representations are made --
(i) by the holder of the premises licence, a responsible authority or an interested party, and
(ii) within the period prescribed under section 51(3)(c),
(b) that they have not been withdrawn, and
(c) if they are made by an interested party (who is not also a responsible authority), that they are not, in the opinion of the relevant licensing authority, frivolous or vexatious.
(9) Where the relevant licensing authority determines that any representations are frivolous or vexatious, it must notify the person who made them of the reasons for that determination.
(10) Where a licensing authority determines an application for review under this section it must notify the determination and its reasons for making it to --
(a) the holder of the licence,
(b) the applicant,
(c) any person who made relevant representations, and
(d) the chief officer of police for the police area (or each police area) in which the premises are situated.
(11) A determination under this section does not have effect --
(a) until the end of the period given for appealing against the decision, or
(b) if the decision is appealed against, until the appeal is disposed of. "
So far as an appeal is concerned, that is covered by section 181, which reads:
"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."
Also there is provision in the Act in sections 182(1) and (2) and 183 as to the making of regulations:
(1) The Secretary of State must issue guidance ('the licensing guidance') to licensing authorities on the discharge of their functions under this Act.
(2) But the Secretary of State may not issue the licensing guidance unless a draft of it has been laid before, and approved by resolution of, each House of Parliament.
(3) The Secretary of State may, from time to time, revise the licensing guidance . . .
(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 has been held, must be determined or any other step in the procedure must be taken.
(2) But a licensing authority may not make any order as to the costs incurred by a party in connection with a hearing under this Act."
The appeal provisions are also found in Schedule 5, paragraphs 8 and 9(1), but it seems to me that they need not be set out.
"21. Subject to the provisions of these Regulations, the authority shall determine the procedure to be followed at the hearing.
22. At the beginning of the hearing, the authority shall explain to the parties the procedure which it proposes to follow at the hearing and shall consider any request made by a party under regulation 8(2) for permission for another person to appear at the hearing, such permission shall not be unreasonably withheld.
23. A hearing shall take the form of a discussion led by the authority and cross-examination shall not be permitted unless the authority considers that cross-examination is required for it to consider the representations, application or notice as the case may require."
In particular, as can be seen from regulation 23, it is provided that the hearing should take the form of a discussion led by the authority and that it is the authority who will decide whether there should be any cross-examination. The process therefore has an inquisitorial aspect, but also an adversarial aspect to it.
"11(1) Subject to regulation 13, an authority may extend a time limit provided for in these Regulations for a specified period where it considers this to be necessary in the public interest.
(2) Where the authority has extended a time limit it must forthwith give a notice to the parties stating the period of the extension and the reasons for it.
12(1) Subject to regulation 13, an authority may --
(a) adjourn a hearing to a specified date, or
(b) arrange for a hearing to be held on specified additional dates
where it considers this to be necessary for its consideration of any representations or notice made by a party.
(2) Where an authority has adjourned a hearing to a specified date it must forthwith notify the parties of the date, time and place to which the hearing has been adjourned.
(3) Where an authority has arranged for a hearing to be held on a specified additional date it must forthwith notify the parties of the additional date on which and time and place at which the hearing is to be held.
13. An authority may not exercise its powers under regulations 11 and 12 in such a way that the effect will be that --
(a) an application will be treated as granted or rejected under paragraph 4(4), 7(3), 16(4), 19(3) or 26(4) of Schedule 8 (transitional provision etc); or
(b) it would fail to reach a determination on the review under section 167 (review of premises licence following closure order) within the period specified in subsection (3) of that section.
Hearing to be public
14(1) Subject to paragraph (2), the hearing shall take place in public.
(2) The licensing authority may exclude the public from all or part of a hearing where it considers that the public interest in so doing outweighs the public interest in the hearing, or that part of the hearing, taking place in public.
(3) For the purposes of paragraph (2), a party and any person assisting or representing a party may be treated as a member of the public.
Right of attendance, assistance and representation
15. Subject to regulations 14(2) and 25, a party may attend the hearing and may be assisted or represented by any person whether or not that person is legally qualified . . .
17. Members of the authority may ask any question of any party or other person appearing at the hearing.
18. In considering any representations or notice made by a party the authority may take into account documentary or other information produced by a party in support of their application, representations or notice (as applicable) either before the hearing or, with the consent of all the other parties, at the hearing."