England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Sitting at: Cardiff Civil Justice Centre 2 Park Street Cardiff
		6th October 2009

Mr Justice Silber:

1. Camarthenshire County Council ("the Council") seeks in these proceedings to challenge a decision made by the Llanelli Magistrates' Court ("the Magistrates") on 30 March 2009, by which it allowed the appeal of Mr Hugh Williams ("the interested party") against the Council's decision revoking his licence to sell alcoholic drinks at premises known as the Class-of-Wine, 1 Colbrook, Pontyberem, Llanelli ("the premises"). The Council was also ordered by the Magistrates to pay the interested party's costs in the sum of £3,850. The Council also seeks an order quashing this costs decision in this application. It is brought with the leave of HHJ Curran QC, sitting as a judge of the Administrative Court.
2. Although the Council challenges the decision allowing the appeal of the Interested Party, it does not seek an order revoking the licence of the Interested Party. Nevertheless, it is necessary for me to consider that decision, because it is relevant on the challenge to the costs decision, and also to the further relief which the Council seeks, which is for a declaration that, on an appeal from a decision of a Council in relation to a review of premises licence under the Licensing Act 2003 ("the 2003 Act"), the Magistrates should take such steps as they consider necessary for the promotion of the licensing objectives which are set out in section 4(2) of the 2003 Act.
3. The background to this application is that it was alleged that alcohol was sold at the premises to three different customers aged 15 years in a trading standards test, and that these sales took place on 7 August 2008, 13 August 2008 and 20 August 2008. The Interested Party was notified that, for those reasons, the Council wished to review his licence pursuant to the provisions of section 51 of the 2003 Act. Under section 52 of the 2003 Act, the Council was entitled on such review to take a number of steps that it considered necessary for the promotion of "the licensing objectives". Those steps included modifying the conditions of the licence and revoking it, as set out in section 52(4) of the 2003 Act.
4. The licensing objectives are of fundamental importance in resolving this application. They are set out in section 4(2) of the 2003 Act, which, provides insofar as is relevant to this case that:

"The licensing objectives are --

(a) the prevention of crime and disorder;

…

(d) the prevention of children from harm."

It is of critical importance in deciding this appeal that section 146(1) of the 2003 Act provides that:

"A person commits an offence if he sells alcohol to an individual aged under 18."

5. On 18 December 2008, the Council sub-committee considered at an oral hearing the application to review the Interested Party's licence. It found that the premises' licence holder or the designated premises supervisor personally sold the alcohol on two of the three occasions to persons under the age of 18. The police and Children's Services of the local authority supported the application, which had been made by the Trading Standards Authority, to review the premises licence granted to the interested party. The Licensing Committee of the Council attached importance to the fact that the application to review the interested party's licence had been made by those bodies, which fall within the definition of "a responsible authority", and it had been supported by two other responsible authorities. The effect of being a responsible authority is that by section 52(2) of the 2003 Act, the Council was obliged to have regard to their representations.
6. The Council found that:

"On the balance of probabilities, the committee is satisfied that the current operation of the premises is not promoting the licensing objectives of protecting children from harm."

The committee proceeded to consider what course of action was necessary and proportionate, and it concluded that:

"…revocation of the licence is necessary in this case, and a proportionate response to what has happened."

7. As I have indicated, the Magistrates allowed the appeal of the interested party. This judicial review application is brought on the basis that the Magistrates first failed to apply the proper law or principles by omitting to consider the legislative objective properly or at all, and second that it also failed to exercise its discretion in relation to costs in a proper and responsible manner. The Magistrates submitted an Acknowledgment of Service, stating that they did not intend to make any submissions other than including a note of the proceedings in which there was an explanation of its decision-making process. The Interested Party has neither been present nor represented, but it made written representations through its solicitor in a letter dated 8 May 2009, in which it contended that the decision of the Magistrates should be upheld.
8. Before dealing with the Council's submissions, it is appropriate to summarise the reasoning of the Magistrates, which was, first, that the test which they would apply was whether the revocation was "necessary and proportionate in the circumstances of the case". The Magistrates, in answering that question, found first that the Interested Party had been the proprietor of the premises for 19 years and second that he enjoyed a clean and unblemished record prior to the date of the test purchases. The Magistrates also attached importance to the fact that PC Melly had given evidence that there was no link between the premises and the commission of any crime and disorder in the village of Pontyberem.
9. The Magistrates also considered that the Interested Party was:

"… properly implementing the law. We also note their many letters of support for Mr Williams."

The conclusion of the Magistrates was that:

"We will therefore allow the appeal…

In coming to this decision we had regard to the Secretary of State's guidance under section 182 of the Licensing Act 2003."

The Magistrates also explained that:

"The selling of prohibited goods to children is clearly a matter which has to be taken seriously and we view it in this light and therefore have no criticism of the Local Authority's decision to conduct the test purchases and bringing the matter before the subcommittee."

10. The main ground of challenge relied on by Mr Graham Walters, counsel for the Council, is that the Magistrates failed to apply the statutory test in the licensing in section 52 of the 2003 Act, which provides that:

"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."

11. In my view, the decision of the Magistrates was wrong, for the following overlapping reasons. First, they adopted the wrong test of considering whether the revocation of the Interested Party was necessary and proportionate, which thereby disregarded attaching any weight to the licensing objectives in the statutory obligations in the 2003 Act. Second, the Magistrates erred, as they did not expressly or impliedly consider the licensing objective of "prevention of children from harm" or the prevention of crime and disorder contained in the 2003 Act and the guidance under it.
12. By acting this way, the Magistrates were ignoring their duty under section 4(3) of the 2003 Act, which provides:

"In carrying out its licensing functions, a licensing authority must also have regard to --

…

(b) any guidance issued by the Secretary of State under section 182."

13. Guidance was indeed issued under section 182 of the 2003 Act. The approach which should be taken to the Guidance is set out in paragraph 2.3 of the guidance, which provides that:

"…in carrying out its functions a licensing authority must have regard to guidance issued by the Secretary of State under section 182. The requirement is therefore binding on all licensing authorities to that extent."

It is noteworthy that paragraph 5.99 of the Guidance states that:

"The proceedings set out in the 2003 Act for reviewing premises licences represent a key protection for the community where problems associated with crime and disorder, public safety, public nuisance or the protection of children from harm are occurring. It is the existence of these procedures which should, in general, allow licensing authorities to apply a light touch bureaucracy to the grant and variation of premises licences by providing a review mechanism when concerns relating to the licensing objectives arise later in respect of individual premises."

By paragraph 1.115 of the Guidance, the question of the sale of alcohol on the premises for underage drinkers is considered, where it is stated that:-

"There is certain criminal activity that may arise in connection with licensed premises, which the Secretary of State considers should be treated particularly seriously. These are the use of the licensed premises:

…

for the purchase and consumption of alcohol by minors which impacts on the health, educational attainment, employment prospects and propensity for crime of young people."

14. In my view, the Magistrates were obliged to consider the sale of alcohol to minors "particularly seriously", as stated in the Guidance. Unfortunately, they did not do so, because they failed to consider with care, in its review of the license, whether its decision was consistent with the objective, and in particular the impact on the health, educational attainment, employment prospects and propensity for crime of young people. This was particularly relevant in this case, as the Interested Party committed an offence on three occasions by selling alcohol to youths who were three years under the age of 18. There is nothing in the reasoning of the Magistrates to show that they considered these matters at all.
15. The significance of the guidance has been stressed repeatedly by this court. In R (Donald Thwaites Plc) v Wirral Borough Magistrates Court [2008] EWHC 838 (Admin), Black J said at paragraph 38:

"What a…magistrates' court is not entitled to do is simply to ignore the Guidance or fail to give it any weight…when a magistrates' court is entitled to depart from the Guidance and justifiably does so, it must…give proper reasons for so doing. ….the magistrates did not need to work slavishly through the Guidance in articulating their decision but they did need to give full reasons for their decision overall and full reasons for departing from the Guidance if they considered it proper so to do."

16. In R (BassetLaw District Council) v Worksop Magistrates Court [2008] EWHC 3530 (Admin), Slade J said at paragraph 37 that:

"The district judge in reaching his decision simply referred to the circumstances of the case and the fact that what is necessary is a question of the valuation and judgment…The district judge in my judgment failed to identify why and in what respects he was departing from the guidance. I find that the district judge erred in failing to give reasons for departing from the applicable guidance."

This case is a stronger case, because in this case it is that the Magistrates not merely did not follow the Guidance, but they did not even refer to it at all.

17. A third reason why the Magistrates erred is that they failed to consider the harm caused by the sale of alcohol to these 15 year-old youths. This was, after all, the basis on which the Council revoked the application, but instead the only matter which seemed of importance to the Magistrates was the absence of any connection between the premises and the commission of a crime in the village of Pontyberem. As I have already stressed, the Magistrates had to consider further matters other than the commission of a crime in relation to the effect of selling alcohol to under-age youths, such as the effect on other aspects of their life.
18. The fourth objection to the approach of the Magistrates is that they did not deal properly with the objections from three responsible authorities to the continuance of the interested party's license. They were, as I have explained, the Trading Standards Authority, the Police and the Children's Services. I have already referred to the statutory provisions, which show that the Magistrates were obliged to consider them. These matters were not considered at all by the Magistrates, notwithstanding that each of those three organisations was a responsible authority which had made representations.
19. It is well settled in this court that the Magistrates and the Council were obliged to attach some weight to it. In the case of Donald Thwaites (supra) it was held at paragraph 63 that weight had to be attached by the decision- makers to the views of the police. In my view, similar reasoning applies to the views of the trading standards, and the children's department. It is noteworthy as well that paragraph 2.1 of the Guidance states that the licensing authority should:

"…look to the police as a main source of advice on crime and disorder."

20. Furthermore, paragraph 2.51 of the Guidance states that an authority should expect to maintain close contact with the police, young offenders' teams and trading standards officers regarding unlawful sales and consumption of alcohol by minors and the development of control strategies. Paragraph 5.103 of the Guidance points out that:

"It is important to recognise that the promotion of the licensing objectives relies heavily on a partnership between licence holders, authorised persons, interested parties and responsible authorities in pursuit of common aims."

Unfortunately, the Magistrates failed to comply with those requirements.

21. Finally, the reasoning of the Magistrates shows that they regarded as definitive in this case the absence of any link between the premises and the commission of crime and disorder, as well as the fact that steps had been taken by the Interested Party to ensure no sales were made in the future to underage youths. This shows a misunderstanding of the legislative objectives.
22. For all those reasons, I have concluded that the decision of the Magistrates was flawed. It has not been suggested that I should, therefore, revoke the license of the Interested Party, and I do not do so. I do however make the declaration which has been sought. In my view, it would serve a useful purpose, as it would explain to these Magistrates and other bodies the approach which they should adopt. The effect of my disagreement with the approach of the Magistrates is it undermines their decision to order the Council to pay the costs of the interested party. The reasoning of the Magistrates was that:

"With regard to costs, given the sub-committee decision to revoke the license was unreasonable in all the circumstances and therefore unsound. We award the full costs as requested."

23. It will be quite apparent from what I have just said that I am unable to accept that approach, and for that reason the order for costs must be quashed.

Mr Walters: My Lord, thank you, and just as part of the order, there will be no order for costs today.

Mr Justice Silber: It will be very helpful if you can draft an order before you leave and hand it in.

Mr Walters: Yes, my Lord, I will do that.

Mr Justice Silber: I am probably not going to be around until about 2 o'clock. If it could be done by 2 o'clock that would be very helpful. Thank you very much.