England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		26/05/2011

Mrs Justice Rafferty:

1. 
    
   
2. Abbas Boyraz ("the Appellant") by way of case stated appeals against the 9^th April 2010 decision of District Judge McPhee ("the DJ") to dismiss his appeal, pursuant to section 181(2)(a) of the Licensing Act 2003 ['the Act', 'LA 2003'], against the respondent's determination of 16^th September 2009, pursuant to Section 52 of the Act, of an application for the review of his premises licence held for The Marathon, 87 Chalk Farm Road, London, NW1 8AR.

Date	Event
27th January 2006	Premises licence granted in original form
17th July 2009	Police application for review of premises licence
16th September 2009	Hearing to determine review application
6th-7th April 2010	Appeal hearing before District Judge McPhee, Highbury and Islington Magistrates' Court
9th April 2010	Decision of District Judge McPhee

3. The respondent local authority ("the Council") had determined that the late evening/early morning hours for the provision of late night refreshment and the retail sale of alcohol should be reduced. Conditions attached to the licence were modified, to take account of the reduced hours. The DJ upheld the reduction in licensed hours and attached additional conditions.

The Case Stated

4. The question posed is:

"…whether I erred in law by imposing conditions which were not necessary and proportionate to my findings and whether I erred in law in making findings of fact in the light of the burden of proof."

5. The draft/questions posed by the Appellant were very much more discursive and read as follows:

"1. Whether you erred in law (acting irrationally and/or, without giving adequate reasons) when determining, in exercise of your de novo jurisdiction, that modification of the licensable activity hours for the provision of late night refreshment and/or for the retail sale of alcohol, for which the premises could operate, and to the extent so determined, was necessary and proportionate, notwithstanding particular findings of fact:

(1) That the Designated Premises Supervisor (DPS), within the meaning of section 15 of the 2003 Act, should remain in place, and would "be best placed to deal with…difficulties" having demonstrated "renewed vigour" and having overseen "an improvement in the premises"

(2) That neither the DPS nor the Premises Licensee "was not asked in any detail" in cross-examination by the Local Authority about the evidence produced by the Police in respect of allegations of crime and disorder cited in support of the Review decision. This was notwithstanding that the DPS was "emphatic in saying that he did not agree with the anything which the Police said"

(3) That "the [Police] hearsay evidence appeared to be…by way of tacit consent rather than agreement as to the content. The importance of that is that the designated premises supervisor provided evidence on oath and was able to be cross-examined about his rebuttal of a significant portion of those incidents. The rebuttal was in [the DPS'] filed statement and he was not asked in cross-examination about the detail of his statement. It was never suggested to [the DPS] that the content of his statement was untrue. There are therefore a number of incidents which I prefer the evidence of Sevket Boyraz which could have been but were not tested in cross-examination over the hearsay reports"

(4) That "There was however no significant support which [PC Kinson] was able to give to the bulk of the complaints made by the police" ; and

(5) That "I do accept that there have been some improvements. Those improvements notably are in managing numbers internally and compliance with existing licence conditions."

AND

2. Whether you erred in law (acting irrationally and/or, without giving adequate reasons) when materially concluding, especially in light the (above) findings of fact made, in light of the onus of proof on the Local Authority/Police in support of the Review decision then appealed against, and in light of the evidence which was not in fact put before the Court:

(1) That "there is real evidence that the management have had to be cajoled and coerced into change…there is real evidence that they have turned a blind eye to advice which has allowed disorder within and outside their premises to continue ;

(2) That "a large part of the Marathon clientele is drawn to the Marathon because of the opportunity to drink alcohol there" ;

(3) That "the Marathon is a magnet for individuals who have already consumed large amounts of alcohol and who are either drunk when they arrive or become drunk soon thereafter ;

(4) That "A health trade is clear evidence of demand" ;

(5) That "the loitering of customers of the marathon outside is a serious and enduring nuisance…loitering is also likely to lead to serious disorder

(6) That "the management had been stubborn and leaden in moving forward although I do accept that there have been some improvements. Those improvements notably are in managing numbers internally and compliance with existing licence conditions";

(7) That "I have significant concern about…the number of attendances by the police to serious allegations of violence…" ; and

(8) That "This management is not capable of dealing with the problem."

The legal framework

6. The approach of the magistrates' court to appeals under the Licensing Act 2003 has been canvassed by the Court of Appeal in R (Hope and Glory Public House Ltd) v (1) City of Westminster Magistrates' Court (2) The Lord Mayor and Citizens of the City of Westminster [2011] EWCA Civ 31 ('Hope and Glory'), and in Daniel Thwaites Plc v Wirral Borough Magistrates' Court [2008] EWHC 838 (Admin) ['Thwaites']. Hope and Glory, in which Toulson LJ reviewed the history of the Act, which reflects the recognised importance to the licensing process of local residents, is authority for the following propositions:-

a) deciding what (if any) conditions should be attached to a licence as necessary and proportionate to the promotion of the statutory licensing objectives is essentially a matter of judgment rather than a matter of pure fact;

b) Careful attention is to be paid by the magistrates' court to the reasons given by the licensing authority for reaching its decision;

c) The appellant bears the responsibility of persuading the court that the licensing authority's decision should be reversed;

d) The appellant must persuade the magistrates' court that the licensing authority should not have exercised its discretion in the way that it did.

7. Hearsay evidence is admissible on licensing appeals, an issue explored most recently in Leeds City Council v Hussain [2002] EWHC 1145 (Admin) where it was recognised that:

"Some evidence such as gossip, speculation and unsubstantiated innuendo would be rightly disregarded. Other evidence, even if hearsay, might by its source, nature and inherent probability carry a greater degree of credibility. All would depend on the particular facts and circumstances."

Wednesbury unreasonableness/irrationality

8. The evidential approach for the decision maker is rehearsed in Thwaites, authority for the following propositions:

i) Regulation under the Act must be necessary and proportionate

ii) Events between initial hearing and appeal are relevant

iii) Magistrates must give reasons for any departure from the Guidance issued by the Secretary of State pursuant to section 182 LA 2003 ("the Guidance")

9. Mr Juan Lopez for the Appellant here and below, took me to the Guidance, revised in October 2010, where assistance includes: The "aim through the licensing objectives should be to reduce the potential for concentrations and achieve a slower dispersal of people from licensed premises through flexible opening times"; licensing law "is not the primary mechanism for the general control of individuals once they are away from a licensed premises and therefore beyond the direct control of individual licensees…[who] should take reasonable steps to prevent the occurrence of crime and disorder and public nuisance immediately outside their premises, for example on the pavement…where and to the extent that these matters are within their control"; "…….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. It is therefore equally important that reviews are not used to drive a wedge between these groups in a way that would undermine the benefits of co-operation"

The arguments advanced

10. The Appellant originally submitted that the DJ misdirected himself in failing to acknowledge that the appeal was a hearing de novo. Mr Lopez was obliged to concede that this argument was misconceived in the light of Hope and Glory. It was abandoned.
11. He put his remaining arguments as follows:

i) The DJ misdirected himself in failing to acknowledge that the onus of proof was on the Council to show that alleged instances of crime and disorder had occurred, were the responsibility of the Appellant in licensing terms, and could prejudice the licence;

ii) the decision to reduce licensed hours was irrational and Wednesbury unreasonable in light of the findings of fact, of the burden of proof on the Council and of the evidence before the Court;

iii) the DJ failed to provide adequate reasons in support of his decision;

iv) In light of irreconcilable findings of fact his decision is incoherent.

The factual backdrop and the DJ's conclusions

12. The management function was discharged by Sevket Boyraz, the 'designated premises supervisor' ("DPS") within the meaning of S15 LA. He gave evidence before the DJ and sought to rebut each allegation relied upon by the Council. The Appellant's argument was that the reduction - more significant for the Appellant than the conditions imposed - was disproportionate and/or unnecessary and otherwise erroneous in light of what was necessary to promote the licensing objectives. It was said to amount to a revocation of the licence, given that the constraints rendered the premises unviable. (I was told that the business remains open but is "up against it")
13. Mr Lopez suggests that the DJ fell into error in finding the reduction of hours proportionate and necessary, a conclusion insupportable not least since he also found that the management structure in place at the appeal promoted all relevant licensing objectives. Illustrative of this contention was said to be his finding of an improvement in the operation of the premises following the review by the Council and his acceptance that rebuttal evidence was not challenged. He is also said to have described evidence from the police of alleged crime and disorder as "unsubstantiated hearsay". He is criticised for his failure to identify any incident in respect of which he did not prefer the evidence of the Appellant, in light of the Council's election not to challenge or cross-examine, as well as the of the decision of the Metropolitan Police Service ("MPS") not to adduce further evidence as to alleged incidents of crime and disorder.
14. The most recent allegation of crime and disorder relied on by the MPS had occurred on 15 December 2009. Mr. Boyraz sought to rebut hearsay as to unsubstantiated allegations of crime and disorder from January 2007 until December 2009. These had not been the subject of challenge by the Council. It is odd, therefore, so the argument was developed, that the Appellant's position was not preferred by the DJ, not least since he observed that the bulk of this category of evidence could not be spoken to by attending police officers.
15. Mr Lopez develops his arguments as follows: the DJ concluded it was neither necessary nor proportionate for Mr. Boyraz, best placed to deal with difficulties, and, Mr Lopez submits, a witness who had in his evidence demonstrated renewed vigour, to be removed as DPS. The DJ reminded himself of the evidence of PC Kinson, a licensing enforcement officer, that there had been an improvement, argued by the Appellant as reflective of the general evidence of PC Kinson that the premises were getting better and that no officers had been complaining since the review.
16. Rather than considering a series of narrowly focused selections from the judgment, upon which the Appellant relies, attention to the DJ's exact words headed "My Determination" pays dividends. He said:

"I sensed in both police officers who gave evidence a real frustration in seeking to work in partnership with a reluctant management. I find that there is real evidence that the management have had to be cajoled and coerced into change. I find that there is real evidence that they have turned a blind eye to advice which has allowed disorder within and outside their premises to continue. I can understand the frustration which led Sgt Dear, licensing sergeant for Camden, to seek the revocation of the licence….I accept the evidence of Mr Waite, a local resident, that many [customers] are noisy and certainly a number….will have been consuming alcohol .into the early hours……..I am satisfied that a large part of the Marathon clientele is drawn to the Marathon because of the opportunity to drink alcohol there until the early hours but it does appear that the Marathon is a magnet for individuals who have already consumed large amounts of alcohol and who are either drunk when they arrive or become drunk soon thereafter. …I have seen the video evidence of the numbers who congregate and the noise …and the mess they make. I have heard uncontradicted evidence from Mr Waite of individual urinating against his residential building and ………the video contradicts the evidence of the DPS who says that they have been dealing with the problem …of congregating…I accept there are limitations on the door staff dealing with members of the public on the highway but I do find that the …..congregation…..is a serious and enduring nuisance. ……I also find that the loitering is ….likely to lead to serious disorder. There are other premises in the vicinity permitted to retail alcohol into the early hours but the clear evidence……is that at those…premises there is less crime, the levels of drunkenness are way below those of the Marathon and the management of a much higher standard. The problems of drunkenness disorder and nuisance are therefore all avoidable. They should therefore have been avoided before now. ……I am satisfied that the management had been stubborn and leaden in moving forward although I do accept that there have been some improvements. Those improvements notably are in managing numbers internally and compliance with existing licence conditions……I have significant concern about…the number of attendances by the police to serious allegations of violence the amount of drunkenness …the noisy congregation……and the lacklustre approach of management in dealing with the problems……The purpose of the reduction in permitted hours is to dealt with the late night disorder and nuisance…My clear view is that the problem is entrenched, that this management is not capable of dealing with the problem and that no modification of the permitted hours would simply allow the problem to continue."

17. As to the final sentence in this quotation, Mr Lopez suggested it shows internal incoherence. As I made plain in dialogue, I do not read it in the same way. If one inserts "to make" into the sentence so that it reads "My clear view is that the problem is entrenched, that this management is not capable of dealing with the problem and that to make no modification of the permitted hours would simply allow the problem to continue" the DJ's view is plain. Indeed I can conceive of no alternative construction and am fortified to find that the Respondent agrees. That is an end to the argument that contentions within that part of the judgment are oppositional and thus illogical.
18. Finally on this topic the Appellant relies on "[t]here are therefore a number of incidents [as to] which I prefer the evidence of Sevket Boyraz which could have been but was not tested in cross-examination over the hearsay reports" as founding the submission that as a consequence the following findings of fact are oppositional to those conclusions:

"there is real evidence that the management have had to be cajoled and coerced into change…there is real evidence that they have turned a blind eye to advice which has allowed disorder within and outside their premises to continue ;

"a large part of the Marathon clientele is drawn to the Marathon because of the opportunity to drink alcohol there"

"the Marathon is a magnet for individuals who have already consumed large amounts of alcohol and who are either drunk when they arrive or become drunk soon thereafter

"A healthy trade is clear evidence of demand";

"the loitering of customers of the marathon outside is a serious and enduring nuisance…loitering is also likely to lead to serious disorder;

"the management had been stubborn and leaden in moving forward although I do accept that there have been some improvements. Those improvements notably are in managing numbers internally and compliance with existing licence conditions" ;

"I have significant concern about…the number of attendances by the police to serious allegations of violence…"; and

"This management is not capable of dealing with the problem."

19. Such findings simultaneous with support for the existing management structure and endorsement of its suitability to operate the premises, so the submission goes, render the decision to reduce the licensed hours Wednesbury unreasonable. Further, it is said that there was no evidence on which the DJ could reasonably have reached any of those findings, at least in part since the Council did not at any stage advance an argument that the premises was 'attractive' to problem individuals or amounted to a "magnet".
20. The DJ's criticism of the management, Mr Lopez argues, appears based on a flawed assessment of a suggested series of police visits. PC Kinson's evidence was that he was not aware of any reported problems of crime and disorder since the original review hearing. PS Dear could speak only of the few alleged incidents of crime and disorder he had attended, none post-December 2009. The submission is thus that the DJ's treatment of the rebuttal evidence of Mr. Boyraz should have permitted him only to find in accordance with it.
21. Separately and additionally, his approach to 'demand' is criticised as confused and not founded on evidence. In any event it is argued that evidence of consistent level of footfall on any day or night of the week could not, of itself, have disclosed a failure to promote the licensing objectives. Whilst an identifiable consumer demand for licensed premises is capable of forming a relevant consideration, that is so only where the demand indicates problem individuals being attracted. Such, it is said, was neither in evidence nor submitted on behalf of the Council, nor does the DJ make such a finding. The findings of fact on which the DJ reduced the licensed hours were thus, so the argument goes, "notably incoherent", inconsistent with findings in support of present management, contrary to the evidence heard as summarised in the judgment and as consequence irrational and Wednesbury unreasonable.

Conclusions

22. The Appellant bore the burden of showing before the DJ that the decision appealed was wrong. The MPS before him relied upon a certain amount of hearsay evidence as to a series of incidents. It was based on police records, not on tittle-tattle or idle speculation. Where it was expressly rebutted by Mr Boyraz as the "voice" of the Appellant and where his evidence was not specifically challenged, his was preferred. On those identified occasions minimal if any weight was accorded by the DJ to the hearsay evidence.
23. PC Kinson's evidence was plainly relevant and admissible. The Appellant through the DPS accepted that the police visits he mentioned had taken place, but expressly refuted the detail set out within the record of a number of them. The DPS was not specifically challenged in relation to those matters. The DJ concluded that where evidence from police records had been expressly rebutted by or on behalf of the Appellant and where the Appellant's evidence was not specifically challenged, the Appellant's account was preferred.
24. The DJ accepted the Respondent's evidence where PS Dear and/or PC Kinson gave direct evidence of matters within their knowledge, the last in time as to 1^st January 2010, where no specific issue was taken with evidence drawn from police records, and where direct evidence was given by the interested party, Luke Waite, supported by CCTV footage, to which I shall shortly turn.
25. The DJ said:

"To place in context the findings of fact on the police evidence I must say a word or two about evidential matters.

The evidence as to the police attendance at the premises, save for those visits at which the witnesses Sgt Dear and/or PC Kinson were present is taken exclusively from police reports. The police chose not to disclose the source material for those reports to the Marathon either before the committee or before me. It is clear to me that those representing the Marathon had sought the source documents, the CRIS and CAD reports prior to the hearing. No issue was taken before me to seek to force such a disclosure. It follows, however, that the bulk of the police evidence comes from hearsay reports. The evidence could not properly be challenged. Neither Sgt Dear and (sic) PC Kinson were able to deal with the detail of those incidents at which they were not present. The hearsay evidence appeared to be before me by way of tacit consent rather than any agreement as to the content. The importance of that is that the designated premises supervisor provided evidence on oath and was able to be cross examined about his rebuttal of a significant portion of those incidents. The rebuttal was in his Boyraz's filed statement and he was not asked in cross-examination about the detail of his statement. It was never suggested to him that the content of his statement was untrue. There are therefore a number of incidents where I prefer the evidence of Sevket Boyraz which could have been but was not tested in cross-examination over the hearsay reports".

26. I do not accept that any of this redounded impermissibly to the disadvantage of the Appellant. Had the hearsay been broad in scope, difficult to isolate, vague or shifting in type, and as a consequence difficult or impossible to confront there might be some force in the Appellant's submissions. Here, however, it was founded in official (and examinable) records, themselves contemporary to the event they recorded or as nearly so as was practicable. The DJ's approach was not only unimpugnable but arguably more generous to the Appellant than he might have expected.
27. The evidence of Mr Waite is illuminating. He lives in a neighbouring block of flats and his predominant concern, he told the DJ, was congregation outside the club, eating drinking swearing shouting and, weekly, awakening him two or three times. Shortly before he gave evidence he was threatened by patrons outside.
28. Written submissions of the Appellant were silent as to Mr Waite. Mr Lopez in oral argument was reduced to a suggestion that his evidence went only to noise, whereas the DJ must impermissibly have relied upon it to support his conclusions as to necessary steps to prevent nuisance. He criticises the DJ for failing to raise, presumably in argument, the question "Who is responsible for containment?" He contends that at its highest Mr Waite's evidence is of people outside, but falls short of establishing the need for them to be contained.
29. I have reminded myself of the DJ's findings of fact. These include the following:

i) The Marathon attracts a clientele which includes a number of individuals who remain in the premises whilst drunk.

ii) The Marathon attracts a clientele which includes a number of individuals who purchase takeaway food and remain on the pavement outside of Marathon and in the near vicinity of Marathon. These individuals are in a constant state of flux which as the effect of a congregation outside of the premises until sometime after 3am especially at weekends.

iii) The individuals who congregate outside the Marathon stand and eat their food and engage in revelry and loud conversation which from time to time wakes individuals who are until that time asleep at home. Luke Waite is woken in this way 2 to 3 times each week.

iv) The Marathon management have been ineffective in seeking to deal with the congregation of individuals causing a noise nuisance outside of their premises.

v) The Marathon management have not always worked in cooperation with the licensing authority and police officers in implementing strategies to deal with disorder at the premises, drunkenness at the premises and nuisance caused to neighbours by their customers congregating outside and in the near vicinity.

vi) The Marathon management have had to be cajoled and on occasion persuaded by reference to the licence conditions to take the concerns of the police seriously.

vii) The Marathon management have never been prosecuted for breach of a licence condition.

Within these conclusions is reliance upon the evidence of Mr Waite. It was as to fact. It was supported by CCTV. The DJ used it as he was entitled to do in setting the context of the background upon which he was to base his conclusions. Significantly, it afforded evidence of interference with the licensing objectives, interference which continued beyond the review hearing and well into 2010. There is nothing in the specific criticism of the DJ's approach to the Waite evidence.

30. The detailed findings of fact were based on the entirety of the evidence, and took into account the Appellant's submissions, specifically including the potential impact of a rejection of the appeal. Such an approach was scrupulously fair. I do not recognise any flaw in the chain of reasoning. There is no merit in this part of the Appellant's submissions.
31. It is also difficult to see how the Appellant can hope to sustain his assertion that there is within the judgment evidence of incoherence. I have tested the submission that the evidence as to management history flies in the face of the conclusion reached by the DJ and have found that it is not made out. It is true, as I have rehearsed, that there had been some improvement recent to this litigation. I accept also that the management as currently in place might be best placed to capitalise upon it. That is as far as the DJ went in his conclusions. There was nothing to stop the existing management from continuing in post and, if the Appellant's submissions are well-founded, continuing the upward trajectory upon which it relies.
32. However that is not an end to the matter. The DJ did not describe the current management in terms of unreserved approbation, rather he chose his words with care and was realistic, as the evidence drove him to be. Second, he addressed interference with the licensing objectives, especially during the early hours. He found that it had continued until at least the end of February 2010, well beyond the review hearing. Those deficiencies he listed had not, on his findings, been addressed by the management.
33. It was open to him on the evidence to conclude:

i) that the management history at the premises was underwhelming;

ii) that there had been some recent improvements in the operation of the premises, that the existing management was well placed to build on such improvements, and that accordingly the removal of the existing DPS was not necessary. This last does not in my judgment equate, as Mr Lopez suggested it did, to a finding that the management structure actively 'promoted … the licensing objectives';

iii) that incidents of serious interference with the licensing objectives continued to occur, and

iv) that the period of particular concern had been and continued to be the early hours.

34. In my judgment the DJ set out a series of factual findings founded upon his assessment of the evidence called by both parties. In reaching his determination on the merits, the DJ expressly took into account the appellant's contentions, including the potential impact on the premises of not allowing the appeal. He is criticised for on the one hand finding the removal of the existing DPS not necessary (applauded by the Appellant) but on the other failing to explain why the DPS was not capable of coping with hours longer than those he permitted. He does not specify which hours would be appropriate and which would not. As Mr Lopez phrased it in oral submissions, there need not be a complete script but on the other hand the Judgment lacks necessary expanded reasoning.
35. I do not agree. The DJ with economy of expression and with clarity answered the questions statute posed. There is no requirement that he should go into detail unless his failure so to do renders flawed the decision he has reached. Here, his decision is plainly supported by the evidence.
36. It is useful to remind oneself of how the DJ phrased the question for the opinion of this court:

'… whether I erred in law by imposing conditions which were not necessary and proportionate to my findings and whether I erred in law in making findings of fact in the light of the burden of proof.'

37. With great respect to the way Mr Lopez much enlarged upon it for the DJ's consideration, that single sentence seems to me concisely and accurately to reflect what is in issue. In his 24-page judgment the DJ sets out a detailed and comprehensive account of how he approached his task. It easily meets the requirements set out in (South Bucks District Council v Porter [No.2] [2004] UKHL 33, at paragraph 35;

"The reasons given for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the 'principal controversial issues', disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. "

38. The judgment is a clear, economically expressed and measured record of those matters which the DJ had correctly identified as going to the issues, it is lacking neither in reasoning nor in attention to relevant topics, and it contains no impermissible reasoning. His conclusion that the amendments imposed by the Council, and his consequential decision not to interfere with its decision, were open to him on the evidence as was his decision to attach further conditions. There is nothing incoherent in his reasoning or in his analysis
39. Whilst one understands the rigour with which Mr Lopez sought to deconstruct the exercise undertaken by the DJ, to overcomplicate is not in this instance to assist. I have taken care in this judgment to illumine the context in which he set his finding. This was an unimpugnable application by an experienced tribunal of law to fact. It did not fall into error in any of the ways in which the Appellant suggests and this appeal is rejected.