England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		17 November 2009

1. LORD JUSTICE MOSES: The Licensing Act 2003 introduced a new and radical system for conferring alcohol and entertainment licences. From its introduction licensing authorities were responsible for the decision whether to grant or refuse such licences. No longer did Licensing Justices have that power. Licensing authorities were required to grant a licence to permit licensable activities in premises, unless representations were made by statutorily defined interested parties, or a responsible authority such as the police.
2. Interested parties and responsible authority were made parties and were entitled to make representations. But this application by way of judicial review raises the question of whether those who are parties before the discussion conducted by the licensing authority are entitled to be heard on an appeal. If they are not so entitled, the question also arises whether the magistrate has the power to permit such persons to be heard, even though they are not parties. Apparently different Magistrates' Courts have taken different views.
3. In the current edition of Paterson's Licensing Acts the editors comment that it would be helpful for an appropriate case to be brought before the higher courts so that the present and continuing uncertainty can finally be resolved (2009 edition, Volume 1, page 514). This is it. Whether it is helpful it is for others to decide.
4. This application, with the permission of the Single Judge, to move by way of judicial review, concerns a decision of the City Council of Nottingham to grant a new premises licence to Tesco in respect of a new Tesco Express which has now opened at Shakespeare Street, Nottingham. The City Council granted that licence on 19 February 2009 following a hearing attended by representatives of the Chief Constable of Police of Nottingham and Tesco Stores Limited. There was no opposition to the grant of the licence, but there was a dispute between the Chief Constable and Tesco as to the ambit of conditions which should be attached to it.
5. No one can be unaware of the problems of young people drinking in the city centre of Nottingham. There was understandable concern that yet another retail outlet off-licence should be available to those who wish to drink and misbehave in the streets. Accordingly, the Chief Constable was concerned that there should be a condition imposed on the new store requiring bottles for sale containing alcohol to be marked showing the origin of the particular bottle; secondly, that a refusals book should be kept identifying those to whom employees of Tesco had refused to supply bottles containing alcohol.
6. The licensing authority agreed that those conditions were appropriate. In so determining they received evidence from Inspector Winter of the police, from Tesco Stores and heard submissions by both parties. There is a full and admirably cogent copy of the decision within the papers with the report of the subcommittee, including the written evidence of Inspector Winter, that again clearly and admirably sets out the reasons why the conditions were sought. Tesco appealed against the imposition of the conditions by notice of appeal dated 26 February 2008.
7. The police were anxious to uphold the conditions which they had successfully persuaded the subcommittee to impose. They were particularly concerned that restrictions should apply in what the police regarded as a sensitive location within Nottingham, where young people both lived and gathered, and where they might have ready access to alcohol from off-licences such as the Tesco stores in question.
8. In those circumstances the police had taken the view that if they could not successfully uphold such conditions in this area they might have considerable difficulty in doing elsewhere. I need to emphasise that it is not for this court in any way to pass comment upon the merits of the underlying imposition of the conditions, that will be for the magistrates on appeal. But so important did the police regard this issue that they applied to be joined as a party in the appeal proceedings. That procedural application was heard by District Judge Stobart on 11 June 2009. Leading counsel for the Chief Constable of Police sought permission to appear at the appeal hearing and call witnesses, and the Council fully supported the police both as a matter of principle and in respect of this particular case. District Judge Stobart refused the police application. He gave a judgment and it will be necessary, in the course of my judgment, to give my comments upon the reasons as to why he refused the police application.
9. Before doing so I should note that the hearing of the appeal is due not before the District Judge, but before the Justices next Monday, 23 November. The decision of this court, whilst not only gratifying the editors of Paterson, is therefore necessary for the purposes of that hearing next Monday. Moreover, we were told that there are other cases which await this decision, particularly in the area in Nottingham where the grant of licences and the imposition of conditions are regarded as important for the general good of those who live and pass through that area.
10. Two particular issues of principle arise: firstly as to whether the statute either expressly or impliedly confers the right upon a responsible authority, such as the police, to appear and make representations on the appeal; or alternatively, the extent to which the magistrate had power to allow the police to do so.
11. In order to resolve those issues it is necessary to turn to the statutory scheme introduced by the 2003 Act. Section 1 identifies licensable activities in a way that incorporates within one Act different licensing functions previously exercised either by Licensing Justices or by licensing authorities. Licensing authorities are defined in section 3 in a way that includes Nottingham City Council. The general duties of licensing authorities are identified in section 4. A licensing authority must carry out its functions with a view to promoting those objectives (section 4(1)). 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."

(see section 4(2))

By section 4(3) the licensing authorities are required to have regard to its statement of licensing policy, which it must publish pursuant to section 5, and to guidance issued by the Secretary of State under section 182. The Secretary of State has issued such guidance.

12. Section 13 defines interested parties, including, for example, persons living in the vicinity of the premises in question and "responsible authority", which includes "Chief Officer of Police", in respect of premises licences defined by section 11; in other words, those licences which authorise premises to be used for one or more licensable activities. Section 16 provides for those who may apply for a premises licence.
13. Section 18(2) requires an authority to grant a licence subject only to conditions unless relevant representations are made. Relevant representations are those representations made by interested parties or responsible authorities as to the likely effect of the grant of a premises licence (see section 18(6) and (7)). Thus pursuant to section 18 the authority's obligation to grant the licence is removed once relevant representations are made by those who have the right to make such representations specified in section 18. Once relevant representations are made, the authorities are required to hold a hearing to consider them unless all those concerned agree that a hearing is unnecessary.
14. The licencing authority is then required to have regard to those representations and take such steps identified in section 18(4) as are necessary for the promotion of the licensing objectives identified in section 4. The authority may grant the licence, or grant it subject to any condition, or reject the application among other powers identified in section 18(4).
15. Section 181 confers the right of appeal, to which I shall turn shortly. Section 182 requires the Secretary of State to issue guidance to licensing authorities on the discharge of their functions.
16. Under the Licensing Act 2003 (Hearings) Regulations 2005 ("the 2005 Regulations") functions and procedure are identified. By regulation 2 parties to a hearing are defined and include those to whom the notice of a hearing must be given in accordance with regulation 6(1). Those to whom notice of a hearing must be given in the case of an application for a premises licence are identified through regulation 6(1) in a table in Schedule 2, and include those persons who have made the application and those who have made relevant representations, such as the Chief of Police in the instant case.
17. By regulation 7 notice of a hearing must be given and the regulations set out in regulation 8 the procedure on receipt of notice of a hearing, including the right of a party to apply for another person to make representations on his behalf in regulation 8(2); regulation 9 gives power to dispense with a hearing; regulation 14 requires the hearing to be in public; and regulation 15 identifies those who may attend the hearing, namely a party, as defined in regulation 6 and Schedule 2, who may be assisted or represented by any person, whether that person is legally qualified or not; regulation 18 permits the licensing authority to take into account not only representations and notices, but other documentary information; regulation 24 requires the authority to allow the parties an equal maximum period of time (it is fortunate indeed that the court is not subject to the same strictures); and regulation 30 requires a record to be kept of the hearing in a permanent and intelligible form.
18. The significance of the statutory scheme, coupled with those regulations, is that it provides that those making representations shall be parties to the hearing before the Committee. However, it is of note that whilst it is convenient to describe that as a hearing, regulation 23 provides that the hearing shall take the form of a discussion led by the authority, and that cross-examination should not be permitted unless the authority considers that it is required.
19. The regulations, therefore, provide a code for those parties, such as interested persons and the representative authority, in which they may exercise rights of participation.
20. The system of appeals is to be contrasted with that careful statutory and regulatory code. The power to appeal is conferred, as I have already indicated, by section 181. That section provides that Schedule 5 (to which I shall turn in a moment) has effect and importantly, confers, the power on a Magistrates' Court either to dismiss the appeal or:

"(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."

21. Schedule 5 is of particular significance in this case. It provides a careful code as to those who may be parties to the appeal. Paragraph 1 provides that where a licensing authority rejects an application, the applicant, that is the person seeking the licence, may appeal. Paragraph 2 is relevant since it grants the power of the holder of a licence to appeal against any decision to impose conditions on the licence, as in the instant case. Paragraph 9 contains general provisions about appeals. It identifies the Magistrates' Court to which the appeal must be brought, and under paragraph 9(2) provides that notice of the appeal should be given by the appellant to the Justices' Chief Executive. Paragraph 9(3) provides as follows:

"On an appeal under paragraph 2(3),3(2)(b), 4(3), 5(2), 6(2) or 8(2)(a) or (c), the holder of the premises licence is to be the respondent in addition to the licensing authority."

22. It is of note that an appeal under paragraph 2(3) of Schedule 5 is an appeal by a person who has made relevant representations that the licence ought not to have been granted, or that the licensing authority ought to have imposed different or additional conditions. Such persons be they interested parties, or a responsible authority, are granted the right, pursuant to paragraph 2(3), to appeal against such a decision. In such a case the respondents will be the licensing authority and the holder of the premises licence.
23. What is of note is that there is no reference to any other party being a respondent under paragraph 9(3). Even where an appeal is brought under paragraph 1 or paragraph 2(2), Schedule 5 does not identify any respondent. At first blush that seems curious, but it is readily explicable when one takes into account the provisions of the Magistrates' Courts Act 1980 and the Magistrates' Courts Rules 1981. Section 51 of the Magistrates' Courts Act 1980 confers power on a Justice of the Peace to issue a summons requiring a person to appear before Magistrates' Courts to answer a complaint. Section 53 identifies the procedure on the hearing and particularly refers to a defendant.
24. Rule 34 of the Magistrates' Courts Rules 1981 provides:

"Where under any enactment an appeal lies to a magistrates' court against the decision or order of a local authority or other authority, or other body or person, the appeal shall be by way of complaint for an order."

The note at page 974 of Volume 1 of the 2009 edition of Stone's Justice's Manual refers specifically to section 53. Thus the context of an appeal brought in exercise of the right under section 181 is that it is assumed that the respondent will be the licensing authority, which is the authority which made the order the subject matter of the appeal.

25. The question then arises as to whether the statute confers any implied right on those who were parties before the licensing subcommittee to appear on the appeal before the magistrates. It is plain from my analysis of the statutory provisions that no express right is granted on either the interested party or upon a responsible authority to appear as a respondent, although such a person may do so as an appellant if he is appealing against the grant of a licence, contrary to his submissions, or the imposition of conditions, and that party wishes to seek further conditions or different conditions. In my judgment one must firstly look to the statutory provisions, which are silent as to an interested party or a responsible authority being a party.
26. Mr Findlay QC, on behalf of the Chief of Police, suggested that the starting point for his argument was that there is an implied right as the nature of the hearing. As he pointed out, the nature of the hearing before the magistrate by way of appeal is a hearing de novo. The magistrate is granted the same powers, pursuant to section 181(2). Furthermore, the Guidance issued by the Secretary of State at paragraph 12, particularly at paragraph 12(7), requires the Magistrates' Court sitting on the appeal to approach the question in the same way as the authority should have done.
27. Finally there is good authority for the proposition that the hearing is a re-hearing: see, in particular

Sagnata Investments Ltd v Norwich Corporation [1971] 2 QB 614 and Kavanagh v Chief Constable of Devon [1974] 2 All ER 697, particularly in the judgment of Lord Denning MR at page 698g he said:

"To bring the procedure up to modern requirements, I think they [the Crown Court] should act on the same lines as any administrative body which is charged with an inquiry."

28. I have already referred to the note in Stone's Justice's Manual at page 972 in relation to rule 34 of the rules, which makes a similar point.
29. In the circumstance that the appeal hearing is a hearing de novo, it is absurd, submits Mr Findlay, to construe the statute as taking away the right of those, who were parties before the Licensing Sub-Committee, to be represented. If the appellate tribunal (the magistrates) stand, as they do, in the shoes of the licensing subcommittee, the statutory scheme should not be interpreted as taking away those rights and depriving them of the right to defend the decision, particularly where they are the designated responsible authority.
30. That responsible authority may well have different interests, or more compelling driving reasons to uphold, for example, conditions or to oppose the grant of a licence, and yet if Tesco are correct they are deprived of the opportunity of defending that which was hitherto successful. He submits that such a right was not taken away by paragraph 9(3) of Schedule 5 and there is as much the necessity to imply that right as there is, in any event, in relation to a licensing authority.
31. I disagree. The statute must be construed in the context of the Magistrates' Courts Act and the rules. Under both the Licensing Act and the Magistrates' Courts Act and the rules, the authority is made a respondent, but the absence of any reference to making those a party who were hitherto parties before the Licensing Sub-Committee is striking. Moreover, the changes made by the Licensing Act 2003 included the repeal of the Licensing Act 1964. By section 22(3) of the 1964 Act objectors were granted the right to appear. That right has been repealed. I would, for my part, therefore reject the submission that there is any implied right on those either interested parties or the responsible authority to appear, or to be represented.
32. But the next question which arises is whether the District Judge, or magistrates, hearing the appeal, have power to permit a responsible authority, or for that matter an interested party, to appear, be represented, and call evidence. Up to the hearing of this case it was agreed that the District Judge had what was described as an inherent jurisdiction to permit the police to be heard and call evidence, and District Judge Stobart clearly thought that he had. In reaching that conclusion, all relied upon authority for that proposition contained in Simms v Moore [1970] 2 QB 327, particularly at page 331. Lord Parker CJ commented that Justices have always had an inherent power to regulate the procedure in their courts in the interest of justice and a fair and expeditious trial (see page 321D), and in support of that proposition referred to the observations of Lord Pearson in O'Toole v Scott [1965] AC 939 at pages 958 to 959.
33. All the parties and the Deputy Judge laboured under the difficulty that they lacked the benefit of Hickinbottom J's learning in R v (on the application of V and the Asylum and Immigration Tribunal) v the Secretary of State for the Home Department [2009] EWHC 1902 (Admin). In that case he dismantled any superstition that a statutory Tribunal, or for that matter a statutory court such as the magistrates, had any inherent jurisdiction. However, he accepted that having regard to the statutory function of the particular Tribunal in question, and in that case the Asylum and Immigration Tribunal, the statute might itself impliedly confer powers which may be exercised to further the objective of the statute in question. He said, if I may be permitted to cite it, at paragraph 30:

"What is 'necessary' by way of implication will depend upon the nature of the tribunal and its work, and of course the express powers that are given to it by the legislative scheme. However, in respect of any tribunal with a judicial function, it must be assumed (at least in the absence of the clearest wording) that Parliament intended the tribunal to deal with cases fairly and justly: and, consequently, provisions that are not incompatible with the express rules can be readily implied insofar as they are necessary for achieving fairness and justice."

He then cited the passage of the speech of Lord Bridge in Lloyd v McMahon [1987] AC 625, pages 702 to 703, and continued:

"The implication of procedural rules on this basis is therefore little more than the practical applications of the rules of natural justice read in the context of the tribunal's express powers."

34. In so concluding I read my Lord as echoing at the words of Lord Reid in Wiseman v Borneman [1971] AC 297 at 308, where Lord Reid acknowledged that a Tribunal was entitled to exercise powers and adopt rules, which should be flexible, so as to ensure that they can carry out their task more effectively.
35. What Lord Reid and Hickinbottom J teach is that Tribunals and magistrates do have power to control and regulate their own procedure, so as to ensure the effective resolution and determination of those functions imposed upon them by the statute in play. There is nothing inherent about that power. It is a power which the statute impliedly confers in order to achieve a statutory objective, which it is the Tribunal in question's responsibility to fulfil.
36. In the instant case it was up to the magistrate to determine how best he could achieve the objectives which he was obliged to pursue and how to reach a fair result. In particular, he had to bear in mind the different considerations in relation to interested parties and responsible authority. He had to bear in mind that there was a need to protect the applicant from the undue burden of duplication of argument, and also bear in mind that he did have the power to protect a party, such as the applicant in this case, against the unnecessary incurring of costs, should the appeal fail.
37. There is no obligation upon the magistrates to order more than one set of costs, and where there has been duplication magistrates ought not to award costs which have been thrown away and could have been saved by one set of observations. But he would also have to bear in mind that the burden on an applicant may not just be financial, but a burden in effort and time should there be unnecessary duplication.
38. He would also have to bear in mind that the decision in relation to the appeal as to the licence, or as to conditions in the licence, is not a decision similar to that which he would be accustomed to resolving in the course of ordinary litigation. There is no controversy between parties, no decision in favour of one or other of them, but the decision is made for the public benefit one way or the other in order to achieve the statutory objectives. If authority is needed for so obvious a proposition, it can be found long before the passing of the current Act in Boulter v the Justices of Kent [1897] AC 556 in the speech of Lord Herschell, and in Tynemouth v the Attorney General [1899] AC 293 in the speech of Lord Davey.
39. The power of a magistrate to permit a responsible authority, or an interested party, is, however, only fettered by the objectives which the statute requires the magistrate to achieve, a just resolution of the appeal in furtherance of the objectives in section 4 of the Act and the policy of the licensing authority in question.
40. The arguments in favour of allowing the Chief of Police to be represented, and the arguments against such representation, have been vigorously deployed before the District Judge and before us today. Mr Findlay QC has given ample example of cases where the interests of the licensing authority might differ from those of an interested party, or a responsible authority. Where they differ there might be very good reason for allowing separate representation.
41. It must always be remembered that those who do have their interests separately represented have the control and command of how arguments and evidence may be deployed, and the force with which submissions can be advanced. It is far more difficult where someone has only the opportunity to brief someone else and provide them with information.
42. In this case there were, however, arguments which pointed both in favour of Tesco and in favour of the Chief of Police, and it was the District Judge's job to resolve them. He gave a decision and a note was made of it of which he has approved. He noted that Schedule 5 was silent about other parties, other than the licensing authority, Nottingham City Council. He noted that different magistrates took a different view, but that he would decide these cases on what he described as a case-by-case basis. He said he was not making any hard and fast rule for the future:

"Until the High Court comes up with a definitive answer I will look at the factors with regard to the interests of justice."

43. He then referred to Simm v Moore and R v Malvern Justices ex-parte Evans [1988] QB 540 and continued:

"In these proceedings, I am not convinced that fairness cannot be done. It is open to the licensing authority to liaise with the police and for the police to assist the council in presenting its case.

The police will be able to provide the relevant statistics and policy if required to establish the applicability of the conditions imposed.

I have said in passing, that common sense and an idea of common fairness indicates that Mr Findlay's case holds all the aces, but the reality is that I am constrained by schedule 5 of the Act.

I could go back to inherent jurisdiction but there is a difference between the previous cases mentioned and this case.

The previous case heard on this point involved reviews and revocations which have been instigated and led by the police.

This is not the case here. The argument is somewhat different and applying schedule 5 means that in my opinion, the police should not be joined as respondents in this appeal."

44. This decision has led to dispute as to what it meant. Mr Gouriet QC on behalf of Tesco Stores says that it is plain, that the District Judge believed he was exercising his power as a matter of discretion and, in those circumstances, this court should not interfere since the decision was within the range of reasonable conclusion. On the other hand, Mr Findlay QC contends that the District Judge plainly regarded himself as being constrained by the provisions of Schedule 5. It is trite to observe that this decision must be read as a whole and not be subjected to an analysis appropriate to statutory construction.
45. But it must be read so as to avoid inconsistency.
46. Read in the way that Mr Gouriet QC would have us read the decision, there appears to be an inconsistency between his view that he is not convinced that fairness cannot be done because of the ability of the licensing authority to liaise with the police, and his observation that common fairness indicates that Mr Findlay's case holds all the aces, and that he was constrained by Schedule 5.
47. I do not read in that decision any inconsistency. The District Judge, it is clear to me, was not saying that fairness could not be done for the reasons he gave, but he then continues by saying the fairest conclusion was that the police should be represented. That is the only way of avoiding any inconsistency in this decision. He then refers to Schedule 5, adopting an argument advanced by Tesco in their written argument and suggests that Schedule 5 prevented him doing that which fairness most obviously demanded.
48. I repeat that this court should not interfere so long as the decision is within the ambit of reasonable conclusion. That is particularly important where the District Judge, like any magistrate, is exercising control over his own procedure. But in my judgment the District Judge did misdirect himself as to the law prompted as he was by Tesco's own argument, and did think that he was constrained by Schedule 5 in the way that he should exercise his power. For the reasons I have given, he was not so constrained. The only constraint upon the exercise of his power is that he must exercise the power conferred by the statute impliedly for the purposes of achieving the objective of that statute.
49. In those circumstances I conclude that the District Judge erred, but it would be wrong, in my view, to say that there can only be one result; wrong to say that the only result should be that the police should be represented.
50. In those circumstances I would quash his decision, but send the question as to whether the police should be represented in this case back to the magistrates for their decision and they can reach a fresh view in accordance with this judgment, but in the light of any recent development. The arguments may be fully aired, or may be more limited. The magistrates can therefore decide whether this case requires the representation of the police so as more properly to fulfil their statutory function, standing as they do in the shoes of the licensing subcommittee.
51. I would accordingly allow the application for judicial review to go.
52. MR JUSTICE HICKINBOTTOM: I agree.
53. MR FINDLAY QC: My Lord, I am very grateful to your Lordship for your Lordship's judgment and sitting so late. It certainly will assist the Nottingham Chief Constable and the Nottingham courts to order their procedures accordingly. I do have an application for costs, of which I am sure your Lordship has seen the summary assessment.
54. LORD JUSTICE MOSES: I have not, no.
55. MR FINDLAY QC: (same handed) I simply say two things at this stage: firstly, the notice of the schedule of costs were double what the Nottingham police claimed; and secondly (and I can pass you up a schedule, if necessary) whilst there were a number of issues in the case Nottingham police have achieved substantial success, so in our submission we should be entitled.
56. LORD JUSTICE MOSES: There are two questions: firstly, you ask for your costs, and secondly you say these fees are reasonable?
57. MR FINDLAY QC: Yes, my Lord.
58. MR GOURIET QC: As to the award of costs in principle, the police have not succeeded in the very important submissions they have made as to an express right. Therefore I would ask your Lordships to say that they should not have their full costs. I do not contest the amount, but I question the apportionment in relation to the degree of success they have had.
59. LORD JUSTICE MOSES: We think that the police should have their costs. There was, of course, a dispute about part of it, but essentially they have achieved what they sought to achieve, namely the quashing of the District Judge's decision. In those circumstances we shall grant them their costs. So far as the amount is concerned, there is no dispute and therefore the costs shall be those of the Chief Constable in the sum of £15,140. Thank you all very much.