England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
BIRMINGHAM CIVIL JUSTICE CENTRE

		Birmingham Civil Justice Centre Priory Courts 33 Bull Street Birmingham B4 6DS
		24th May 2010

His Honour Judge William Davis, QC:

1. This is an application for permission to apply for judicial review. Should I give permission, it is proposed that I should forthwith determine the application for judicial review. I intend first to consider, on the material I have seen and the arguments that have been raised, whether there is an arguable case. If there is not I shall not give permission.
2. The claimant is the owner of a supermarket in Coventry called MK Supermarket. It is a local supermarket, not a competitor to Sainsburys or Asda or anything of that sort. He has been the owner apparently since 1 August 2007. When he came into ownership the premises had a license permitting the supply of alcohol for consumption off the premises, the license obviously being in the name of the previous owner. The claimant did not apply for the transfer of that license until the end of 2008. The transfer was granted right at the beginning of 2009. The applicant in fact had been supplying alcohol from the time of his coming into ownership of the premises.
3. These proceedings arise because on 2 March 2009 there was a hearing before the licensing committee of Coventry City Council, the interested party in this case, as a result of which the claimant's license was revoked. He appealed against that revocation; it was an appeal as of right, and the hearing, a hearing de novo (in other words, with whatever evidence any party wished to call being called), took place at the magistrates' court in Coventry on 26 August and the 2 September 2009. It is the decision of the magistrates' court that is the subject of this application for judicial review because that court dismissed the appeal. It is accepted on all sides that the magistrates' court were standing in the shoes of the relevant City Council committee and it is the magistrates' decision that is subject to review in the application for permission to review.
4. The decision of a licensing committee, and therefore the decision of the magistrates, must reflect the licensing objectives set out in Section 4(4) of the Licensing Act of 2003. They 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."

The licensing authority, and on any appeal the magistrates' court, must also have regard to any guidance issued by the Secretary of State under a different section of the Licensing Act. In the written grounds the claimant asserts that the decision of the magistrates' court is not one that any reasonable court applying those principles to the facts of this case could have reached. Although there are more than five matters set out the grounds, they can be distilled down to five separate grounds. I shall deal with those shortly. Before I do so, I must deal with an issue raised for the first time in the claimant's skeleton argument served on 21 May.

5. It arises in this way. The claimant asserts that the only material that the magistrates' court properly could consider was material contained in the representations supplied to the licensing authority on notice being given to the applicant of the review within the statutory period. It is agreed that that period ended on 5 February 2009. Prior to that the claimant had been given notice of the proposed review and he and any interested party were told that they had a month to make their representations. It is on the basis of such material that the licensing authority made its decision. The argument is raised that before the magistrates -- obviously taking place about six months after the local authority review -- evidence was called which had not been contained in any representation made on or before the relevant date, being 5 February 2009. It is not surprising that it had not been contained in the representations made on or prior to that date because the evidence related to events after 5 February 2009. The events had occurred in the period between the hearing by the local authority and hearing of the appeal. Mr De Mello, on behalf of the claimant, says that the magistrates' court should never have considered that evidence at all. They should not have received the evidence. It is not an argument, he concedes, that was raised before the magistrates. Objections were taken to some of the evidence that had been called but those were on completely different grounds. He concedes that it is not a matter that was raised in the initial application for judicial review or in the later detailed grounds. It has only appeared at the end of last week. But he says it is a jurisdictional point. If so, however late in the day it appears, it is appropriate for this court to consider it. This is not something to which Mr Miller on behalf of the defendant takes significant objection. Rather, he says simply that the point is without any substantive merit.
6. I posed this question in the course of argument. Suppose that between the original review and the appeal hearing the holder of the license takes steps to regularise his position and make things better, to do things that he had not been doing before. This would done so that he could say to the magistrates "you are now considering the matter de novo, dealing with the matters as they are now; it would be wrong for you to revoke the license given all the things that I have done". I have no doubt that that is a strategy adopted by license holders and adopted with success. In such cases either the magistrates themselves will allow the appeal or prior to any appeal some compromise will be reached with the local authority that revoked the licence. I asked how this could be done if the magistrates' court had no jurisdiction to hear any evidence of matters arising after the relevant date. Mr De Mello submitted that the answer was that all such material would come within the representations that were made in time by the applicant. His original representation was: "please allow me to keep my license". The later evidence would be no more than further support for that representation. Were that argument to have validity, the same would apply to any respondent in the appeal. Where there have been further breaches and evidence is called about them, the evidence is simply reflecting the original representation that the license holder should not have his license anymore. In fact the true answer to the applicant's argument is that the magistrates' court hears the matter de novo. It is entirely within its rights to hear any relevant evidence -- relevant, that is, to the licensing objectives -- as they apply on the date of the hearing (in this case the end of August, the beginning of September of 2009). The submission that jurisdictionally the magistrates' court took into account matters which simply it should not have done is ill founded.
7. A supplementary submission is made about the notice of review, suggesting that it only identified one of the licensing objectives. In fact, on examination of the documents it is apparent that three of the four licensing objectives (the only one that was not noted was public safety) were relied on. That argument falls along with the jurisdictional point taken by Mr De Mello.
8. I turn then to the matters relied on in the grounds. Dealing with them in the order on which they arise in the grounds, first it is said that the magistrates' court should not have taken into account the circumstances of a sale, an admitted sale, of alcohol to somebody who was under 18. The applicant argues that what the magistrates did was to consider the circumstances and consider whether the claimant in this case (the appellant in their appeal) had, or might have had, a defence to the offence of selling alcohol to children, namely a belief that the person was aged over 18 with all reasonable steps being taken to establish that belief. The argument is that that is something that should not have occurred. I find that the magistrates, in doing that, were acting perfectly within their remit, both in terms of the common sense of the situation and the Government guidance, in particular paragraphs 11.22 to 11.24. Suppose that they carried out that exercise and concluded that, as a matter of fact, the appellant, as he was before them, may well have had a defence. That would all have been entirely to his benefit. It is an absurdity to suggest that the magistrates are not entitled to seek, if they can, to assist an appellant before them.
9. The second matter raised in the grounds is that, as a matter of fact, the magistrates had no basis to find that the claimant knew, or ought to have known, that the relevant person was under 18. Therefore, it was disproportionate to use that sale as any sort of basis for their decision. It is perfectly apparent on the material before me, which includes a quite lengthy interview with the claimant conducted at the time of the relevant sale, that, on his own admission, the claimant had made the sale without taking any steps whatsoever to satisfy himself that the person was over 18, or even to satisfy himself as to what the person looked like. In broad terms, the sale occurred with the young man concerned simply shoving a can of Stella Artois on the counter and saying "how much?" and the claimant saying "a pound", taking the money and carrying on a discussion with somebody else. In those circumstances the magistrates' court was entirely justified in finding as they did. No lack of proportionality arises.
10. The third matter which is raised is that the decision was disproportionate given the extent to which the takings of this supermarket related to the sale of alcohol. A figure of 80% is given in the grounds; I think elsewhere it appears more like 66%: the difference is probably immaterial. It is plainly a very significant part of the claimant's turnover, or at least it was, and reliance is placed on what appears in the fairly extensive reasons of the magistrates, in particular those set out under the heading "Proportionality". The magistrates set out in some detail the need to have a sense of reasonableness and proportionality in terms of their decision, considering all the alternative options that might have existed and referring in particular to the claimant's argument that loss of the license in effect would, if not actually put him out of business, certainly cause him very significant financial loss. The magistrates then said this:

"The appellant, as is the case with any individual, has a qualified right, as defined by European and UK law, to enjoy a right to peaceful enjoyment of his property and living."

11. In assessing the applicant's rights, the court had to take into account the rights and needs of others; in other words the overall circumstances must be taken into account. This appeal raised the issue of balancing the needs of the area with the needs of the appellant and the promotion of the licensing objectives in the community. If matters remained there, one could not begin to suggest that the magistrates had done anything than apply the appropriate test under the first protocol under the European Convention on Human Rights in relation to an individual's right to peaceful enjoyment of his property and living.
12. The magistrates' decision then made reference to carrying out a balancing act with an ungrammatical and not entirely understandable reference to right to a fair trial. It is argued by Mr De Mello that this demonstrates that in fact the magistrates applied completely the wrong test. In my judgment everything that goes before that sentence (which is difficult to understand even within the confines of the sentence itself, never mind the context) demonstrates to me that the magistrates plainly took into account the issues of proportionality and did not take into account matters that they should not have done.
13. The fourth matter relates to evidence called at the hearing before the magistrates that had not been considered by the licensing authority. Material was put before the magistrates relating to apparent breaches of Revenue and Customs regulations. Alcohol was being sold where either the duty had not been paid or was contraband or both. It is argued that that was inadmissible and should not have been considered by the magistrates. I find that the magistrates were entitled to consider that evidence. What weight they gave it was a matter for them. Some of the evidence was hearsay. That did not render it inadmissible. It was a matter of weight. The evidence that was called, evidence about which complaint is made in terms of coming after the relevant date for representations, demonstrated that the claimant rather than turning over a new leaf (his license having been revoked) had carried on as before. That was relevant evidence for the magistrates to have considered.
14. Finally the grounds asserted that no proper reasons were given for the decision. The typed reasons cover four pages. That ground has not been pursued with any vigour this morning. There is nothing in it at all.
15. What the magistrates did was to find as facts the following: there had been a particular under age sale; it was not an isolated event with a number of other underage sales having occurred at the premises; the provisions in the shop for preventing such underage sales (CCTV, signage and the like) were inoperative or missing; between the time that the claimant had taken over the premises until a time of significant period after that, he had operated them without any form of supervisor; when the police had required a proper system to be in place he simply had ignored those instructions and ignored instructions not to sell alcohol; there had been continuing apparent breaches of Revenue and Customs regulations. In all of those circumstances they were wholly entitled to find that the licensing objectives required the revocation of the applicant's licence, taking into account as they did the proportionality of the decision they were making. In my judgment there is nothing that provides the claimant with any arguable case that the magistrates' court were wrong, either jurisdictionally or on the facts. I refuse to give leave for permission.

MR MILLER: (Inaudible) apply for costs.

HHJ WILLIAM DAVIS: Somewhere ... is this the summary assessment schedule?

MR MILLER: My Lord, yes, £2,875.

HHJ WILLIAM DAVIS: Yes. Anything you want to say about that?

MR DE MELLO: My learned friend might be here entitled to serve the acknowledgement of service because, as you know, this is an ex parte hearing, he is an interested party and normally in permission hearings costs are not given, so we resist it, but if you overrule me on that you may take the view that the costs should be proportionate.

HHJ WILLIAM DAVIS: Well, this is a ... I mean, as it turns out, I have refused permission so it is no more than an oral permission.

MR DE MELLO: That is right.

HHJ WILLIAM DAVIS: ... Had I given permission, then, whatever I had done, it would have been a full hearing of the judicial review.

MR DE MELLO: Yes, that's right. So the normal practice, as your Lordship knows, is that if the defendant turns up he doesn't get his costs for attending. What he would be entitled to is getting, in normal circumstances, his costs for preparing the acknowledgement of service, so ...

HHJ WILLIAM DAVIS: Yes, but what I am saying is that if he hadn't turned up he would have run the risk of the thing turning into a full hearing of judicial review.

MR DE MELLO: Yes, but the point is you may take the view that, even given that he had turned up, he should not get it all, or he has attended and he gets something.

MR MILLER: In my submission (inaudible).

HHJ WILLIAM DAVIS: The application for permission is dismissed. The case was in fact listed as a rolled up hearing. Had I given permission then the application for judicial review would have been pursued at a full hearing following immediately thereafter. The interested party had no way of knowing what was going to happen and had to presume it was going to be a full hearing of the judicial review. In those circumstances it seems to me it is entirely appropriate that the interested party should have its costs. It seems to be perfectly proportionate in the sum of £2875 plus VAT.

MR MILLER: My Lord, thank you.