2002/114
COURT OF APPEAL
7th June, 2002
Before: |
P. D. Smith, Esq., Q.C., President; and K. S. Rokison, Esq., Q.C. |
IN THE MATTER OF
The Yacht Hotel Limited and the Decision of the Assembly of the Governor, Bailiff, and Jurats
of 25th July, 2001.
Between |
The Yacht Hotel, Limited
|
APPELLANT |
And |
The Licensing Assembly |
RESPONDENT |
Appeal by the APPELLANT from the Judgment of the Royal Court of 7th March, 2002, whereby it was ordered that the decision of the Assembly of 25th July, 2001, be upheld and the designation of the York Bar as a public bar be re-imposed.
Advocate D. J. Benest for the Appellant;
The Solicitor General for the Respondent.
JUDGMENT
THE PRESIDENT:
This is the judgment of the Court:
1. On 16 March 1995 the Appellant, Yacht Hotel Limited, was granted a licence under the Licensing (Jersey) Law 1974 ("the Law") in respect of premises known as the Royal Yacht Hotel. This licence was a fourth category or "Comprehensive Licence". One of the bars on the premises - the York lounge bar - was designated as a public bar.
2. Article 2 of the Law provides for seven licence categories. Article 3(1) requires that an application for the grant of a licence be made to the Licensing Assembly which is defined in Article 1(1) as meaning the Assembly of the Governor, Bailiff and Jurats. Article 5 of the Law provides for the consideration of applications by the Parish Assembly of the parish concerned. The decision of the Parish Assembly and any reports submitted to it by the Constable (we need not identify these reports as they are not material to this appeal) must be transmitted by the Constable to HM Attorney General and the Attorney General must submit such decisions and reports to the Licensing Assembly (Article 6(5)). The Constable of the parish concerned must attend before the Licensing Assembly on the consideration of the application for the relevant licence and he is entitled to be heard (Article 6(6)). Furthermore Article 6(4) of the Law enables certain other categories of persons to be heard by the Licensing Assembly either in person or represented by an advocate or a solicitor and this includes the relevant applicant.
3. Part VII of the Law (Articles 46 - 54) is headed "The Comprehensive Licence" - i.e. licences of the fourth category. Article 47 provides (as far as is material) that a licence of the fourth category shall authorise the sale by retail of intoxicating liquor for consumption on the premises to (i) persons residing on the premises at any time and (ii) any other person during the permitted hours. The "permitted hours" are set out in Article 53. Insofar as it is material to this case the effect of this Article is that if a bar is designated as a "public bar" it must be closed to all drinkers, both residents and members of the general public alike, at 11.00 p.m. whereas in the absence of such a designation a bar on premises having the benefit of a fourth category licence may remain open to the public until 1.00 a.m. Article 1(1) defines a "public bar" and included in the definition is "... any bar designated as a public bar by the Licensing Assembly." Article 6(10) of the Law provides that the Licensing Assembly may attach to any licence such conditions as, having regard to all the circumstances of the case may seem desirable, including, in particular, the designation of any bar as a public bar.
4. In September 1999 the Appellant applied to the Licensing Assembly for the removal of the designation of the York lounge bar as a public bar. The application was granted at the sessions of the Licensing Assembly on 23 September 1999 in circumstances to which we return below.
5. On 27 September 1999 Mr D R Seymour, managing director of Seymours Limited, which owns a number of hotels in Jersey, wrote to the Bailiff expressing disappointment and dismay at the removal of the public bar designation from the York lounge bar thus allowing non-residents to be served alcohol up to 1.00 a.m. Mr Seymour indicated that he had spoken to the Constable of the parish who informed him that as the application had been made ex parte "... it was not necessary to bring the application to the notice of the public via a Parish Assembly."
6. At this point we digress to observe that applications to remove conditions are not explicitly dealt with in the Law. Article 6(11) provides that:
"Where a holder of a licence wishes to raise any matter concerning a licence held by him at any session of the Licensing Assembly, he shall, at least fifteen days before that session, inform the Bailiff, the Constable of the Parish concerned, the Committee, the Attorney General and the Judicial Greffier of that fact and of the matter which he wishes to raise."
and it appears that this is the provision on foot of which the Appellant applied. Thus, it is clear that the Constable was correct in what he told Mr Seymour. However, we suggest that the relevant authorities may wish to consider amending the procedure applicable to such applications so as to give those whose interests may be affected an opportunity to be heard.
7. The Bailiff sent a copy of Mr Seymour's letter to the Attorney General under cover of a letter dated 18 October 1999. Part of this letter reads as follows:
"... The Assembly was informed by counsel that the purpose of the application was to enable those who resided at the hotel and who were dining in the restaurant to withdraw to this bar for postprandial drinks. Counsel was asked whether it was the intention that members of the public would be able to enter the premises and take advantage of the extended hours. Counsel stated, on instructions, that the company had no desire to become a late-night drinking place, and that the intention was to cater for the needs of residents. On that basis, the Assembly agreed to remove the designation.
It was agreed when the Royal Court met this morning that the Assembly would refer the points raised by Seymour Hotels to you so that you could investigate whether or not the information given to the Assembly was accurate and, if not, consider whether a reference should be made."
In mentioning a reference the Bailiff clearly had in mind Article 9(1) of the Law which provides that:
"Whenever the Attorney General is of the opinion that any matter relating to a licence should be referred to the Licensing Assembly he may submit such matter to the Assembly and in any such case the Assembly shall consider the matter and, having regard to all the circumstances of the case, may suspend or revoke the licence in relation to which the submission is made or may attach thereto such conditions as may seem desirable."
8. The Attorney General replied to the Bailiff in a letter dated 21 October 1999. Part of this letter reads as follows:
"...The Royal Yacht Hotel holds a 4th category licence. This enables alcohol to be sold to residents of the Hotel at any time and to other persons during the permitted hours. The permitted hours are defined by Article 53 as being 0900 to 0100. Accordingly, as a matter of general principle, non-residents may enter and buy alcohol in 4th category premises until 0100 hours.
There is, however, an exception for public bars which can only remain open until 2300 hours (i.e. the Taverner's hours). The York Bar was designated as a public bar with the consequence that, until the sitting of the Assembly in September, non-residents could not drink in the York Bar after 2300 hours.
At the September sitting, the designation of the York Bar as a public bar was removed and no conditions were imposed upon that removal as to who could drink in the York Bar after 2300 hours. It follows that, as a matter of law, any non-resident can enter and drink in the York Bar until 0100 hours. Should the Royal Yacht chose to treat the York Bar as, in effect, a public house which can remain open until 0100 hours, no breach of the Law would have been committed and no prosecution could therefore be brought.
The question then arises as to whether, in the light of the statements made by counsel at the time of the application, I could properly make a reference under Article 9 in the event of the Royal Yacht departing substantially from using the York Bar merely as a bar for those who reside at the Hotel or who dine in the restaurant.
Depending on when such a referral takes place, evidential difficulties may arise. The representation of the Royal Yacht itself is brief and does not purpose (sic) to describe or limit the type of customer who could drink in the York Bar after 2300 hours. I appreciate that your recollection is as described in your letter and it may be that the notes which you made at the time support this. I have taken the opportunity of asking a member of these Chambers who was present at the Assembly for her recollection and she has stated as follows:
"Advocate O'Connell, for the applicant company, did present the application in these terms (i.e., that it was to cater for the needs of residents). However, from what I can recall, the Licensing Bench then began to ask questions whether it would be better just to remove the designation altogether. When questioned about this, Advocate O'Connell said that his client company would, of course, prefer to have the designation lifted without conditions being imposed regarding who could drink in the bar until 1.00 a.m. He cited various examples of similar premises in the area which can stay open until that time, including Chambers.
The Bench reserved its decision and, when it re-sat, simply granted the application to remove the designation. No condition was imposed to restrict the later hours to residents and diners, nor was anything said about the understanding upon which the application was granted."
If a referral were to be made at some stage well in the future at a time when the Royal Yacht Hotel had built up a substantial non-resident trade after 2300 hours, I can foresee some difficulty in the Licensing Assembly being satisfied as to the correct factual basis upon which the extension was granted.
I am inclined to the view that there may be something to be said for an early referral, whilst matters are fresh in everyone's mind, seeking to impose conditions consistent with the original intention of the applicant, namely that after 2300 hours, only residents, diners in the Hotel restaurant and bona fide guests of residents should be able to drink in the York Bar. The grounds for such a referral would be:
(i) that this was the basis upon which the application was made; and
(i) (sic) the lack of conditions means that the level of non-resident trade might increase substantially to the detriment of the Weighbridge area and the adjoining premises ..."
9. On 2 December 1999 Advocate M St J O'Connell, who had appeared for the Appellant before the Licensing Assembly wrote to the Attorney General. This letter set out Mr O'Connell's recollection of what had happened in the following terms:
"... I made the application on the basis that the primary purpose for removing the designation in respect of the York Bar was to resolve an anomaly which existed, namely that guests of the hotel and patrons of its restaurants were unable to obtain a post-dinner drink after 11.00 pm. I specifically recall the Learned Bailiff questioning me as to whether or not it was the intention of my client company to permit the use of the York Bar for persons other than guests staying at the hotel and patrons of the restaurant. At that point I recall that I turned round to locate Mr Renzo Martin, a director of my client company, who was sitting in the public gallery of the Royal Court. He came forward to the bench behind me and gave me instructions to the effect that the primary purpose of the application to relax the restriction was as I had described to the assembly, but there was no intention to prevent people coming in off the street, as it were, for a drink between the hours of 2300 and 0100 hours (sic). I relayed those instructions precisely to the Licensing Assembly. I went on to add that there were two fairly substantial licensed premises in Mulcaster Street which were licensed to serve alcohol until 0100 hours. I referred specifically to the Sports Bar and to Chambers. I recall specifically submitting to the Assembly that it would perhaps create an unfortunate inconsistency if, of the three substantial licensed premises in the vicinity, a restriction was to be placed on one in circumstances where no such restriction applied to the two remaining establishments."
10. The Attorney General prepared a draft reference. We need not set out the whole of that document in this judgment. However, it stated that the Attorney General "... has received a report ... from the States of Jersey Police which states that the York Lounge Bar is being utilised generally by members of the public between the hours of 2300 and 0100 hours. Passers-by are attracted into the Bar by way of signs inside doors of the premises stating "York Bar open to 0100". In the premises the Attorney General has concluded that the utilisation which is being made of the York Lounge Bar may not be consistent with the basis upon which the Assembly granted the application in September 1999 to delete the designation as a public bar ..."
The draft reference included possibilities for consideration by the Licensing Assembly in the following terms:
"... that the sale of liquor in the York Lounge Bar after 2300 hours should be limited to:
(i) residents of the Hotel;
(ii) bona fide guests of residents of the Hotel;
(iii) persons who have dined at any specified restaurant(s) of the Hotel."
11. It will be observed that this draft reference proceeded solely on the basis that there was a discrepancy between the invitation to the public to drink in the York lounge bar up until one o'clock in the morning and what the Licensing Assembly may have understood to have been a more limited intended use of the extended drinking hours. The draft contained no allegation of what might be called misconduct on the part of either those running the bar or patrons of it.
12. The draft reference referred to above was not proceeded with. This may have been because the Attorney General shared the view of the member of his chambers who had been present at the Licensing Assembly and who advised against an early reference as she believed that the information given to the Licensing Assembly had been accurate and recommended that the area be monitored to ascertain whether disturbances or noise were found to have increased since the removal of the designation. Whatever the reason, on 21 December 2000 the Attorney General presented to the Licensing Assembly a much more elaborate reference which was slightly amended on 23 January 2001. Once again we do not consider it necessary to set out all of its terms in this judgment. In summary, it described the premises, the licensing history, the application to the Licensing Assembly to delete the designation of the York lounge bar as a public bar, the monitoring of the bar by the Task Unit (a branch of the States of Jersey Police); asserted that on occasions the bar had been overcrowded; alleged that since the public bar designation had been removed the number of incidents requiring police attendance had increased; described instances of persons using the bar becoming extremely intoxicated; listed offences recorded at or near the premises and complained that attempts by the Task Unit to have the problems resolved by working with the manager had had little or no success. As far as the last-stated matter is concerned there was mention of difficulties with unregistered door staff and the manager not following the statutory procedure when absent from the Island. The reference concluded with the Attorney general's assertion that the conduct of the business on the premises was unsatisfactory, invited the Licensing Assembly to determine whether it wished to vary the licence by reimposing the designation of the York lounge bar as a public bar or whether it would wish to make any other order in respect of the licence and put forward a number of possibilities as to the limiting of the categories of persons to whom liquor might be sold in the bar after 11.00 p.m.
13. The reference came on for hearing before the Licensing Assembly on 25 July 2001. Prior to the hearing a statement of facts was agreed between Bailhache Labesse, advocates and solicitors acting for the Appellant, and the Solicitor General who had carriage of the matter on behalf of the Attorney General. The facts agreed were virtually all of the matters included in the Attorney General's reference and were comprised in paragraphs 1 - 6 of a document prepared on behalf of the Appellant and intended to be laid before the Licensing Assembly. Paragraphs 7 - 9 of that document purported to cover the factual circumstances between the date of presentation of the reference and the date of the hearing. These included an increase in the permitted maximum occupancy figure for the York lounge bar from 110 to 200 granted by the Licensing Assembly on 22 March 2001, the assertion that the door staff of the premises were now registered under the Voluntary Door Registration Scheme and reference to a report of 8 July 2001 from Constable M. Porter of the States of Jersey Police Task Unit which confirmed, inter alia, that the manager had ensured that the door staff were registered, that the door staff had, on occasions, actively assisted the police, that the problems of excess occupancy had been overcome, that there had been a noticeable drop in the levels of intoxication and that the management had adopted toughened drinking glasses at considerable expense which would effectively reduce the incidence of injuries from broken glasses occurring in violent or accidental circumstances.
14. The material events at the Licensing Assembly on 25 July 2001 are set out in an affidavit sworn by the Bailiff on 20 November 2001 in the following terms:
"10. When the Solicitor General had completed her address, I asked whether it was not an anomaly that premises in respect of which a first category licence was held must close at 2300 hours, but that this bar could open to the public until 0100 hours.
11. The Solicitor General agreed that this was an anomaly. She said that the Assembly could have imposed a condition in September, 1999, restricting the use of the bar after 2300 hours to patrons of the hotel. She said that it was a question for the Assembly whether it was appropriate to attach a condition now.
12. When Advocate Benest rose to address the Assembly I told him that there was no question of removing the licence, and asked him to address the Assembly on the anomaly in respect of the hours.
13. Advocate Benest asked if the police officers were aware of other premises in the area upon which there was a bar which could remain open to the public until 0100 hours.
14. Pc Porter said that third and seventh category licences were held in respect of the premises known as Chambers, and that first and third category licences were held in respect of the premises known as Sports, which currently closes at 2300 hours. He was not aware of any other bar open to the public until 0100 hours.
15. Advocate Benest then addressed the Assembly on behalf of the applicant. He said that the premises were operating properly and had acquired the expectation of being allowed to continue. The licensee had expended considerable amounts on the premises. The numbers had been increased by the Assembly in March 2001. The Weighbridge is an area with lots of licensed premises, and the Royal Yacht relieves some of the pressure. The premises are well run and there is a good relationship with the police. Door clickers and CCTV are in use. The hotel has a comprehensive licence not a public bar standing alone. The bar is premises within a larger organisation and is properly controlled. There are other public bars in the hotel that do close at 2300 hours. The only bar open after that time is the York Bar.
16. The Assembly then withdrew to consider the Reference.
17. The recollection of the members of the Assembly who had sat at the September, 1999, Assembly, was that the main purpose of the application had been to allow guests staying at the hotel to use the bar after 2300 hours. This was supported by the note made by me at the time. The Assembly in September 1999, had not anticipated a substantial change in the nature of the business nor had it envisaged the erection of a sign advertising that the premises were open to the public until 0100 hours. The members of the Assembly felt that if that had been the intention it should have been made clear in September, 1999.
18. The Assembly accepted, however, that there had been a genuine misunderstanding.
19. The Assembly then considered the effect of the removal of the designation. It was clear from the facts recounted in the Reference and the police report that the effect of the removal of the designation was that a late night public house had been established outside the categories of the Licensing Law.
20. The Assembly felt that the expectation on which it had made its decision of September, 1999, had been disappointed and that the licensee had made an inappropriate use of the privilege of being able to keep a bar open beyond the permitted hours of a first category licence.
21. The Assembly had regard to the points made by Advocate Benest. It had no wish to penalise the licensee for a genuine misunderstanding but it concluded that it was not in the public interest nor within the intention of the legislature that it should be possible to operate what was effectively a public house during the hours attached to a fourth category licence. The Assembly accordingly resolved to reimpose the designation."
15. The Appellant applied for judicial review of the decision of the Licensing Assembly seeking to have it quashed and the designation of the York lounge bar as a public bar deleted. The grounds on which this relief was sought were set out in an amended Notice of Application in the following terms:
"1. The matter listed before the Assembly for hearing on 25th July 2001 was the consideration of a reference ("the Reference") brought by the Attorney General dated 21st December 2000 which raised the Learned Attorney's concerns regarding the conduct of business at the Premises. The concerns related inter alia to
(i) overcrowding;
(ii) levels of intoxication on the premises;
(iii) the door staff; and
(iv) the circumstances surrounding the absence of the manager for a period in April 2000.
No matter was raised in the Reference as to the appropriateness of the removal of the Designation on the 23rd September 1999 and the question of the appropriateness or otherwise of the removal of the Designation was not a matter before the Assembly.
2. The Assembly acted ultra vires: the matter before them was the Reference brought by the Learned Attorney pursuant to Article 9(1) of the Law. The Assembly's consideration is confined, by a proper construction of that Article to the matters raised in the Reference. The Assembly has no power to raise of its own motion matters not referred to it under the Article. Therefore the Assembly had no power to revisit the question of the Designation; the matter of whether the Designation should or should not have been removed, not having been raised with it by the Learned Attorney in the Reference or at all.
3. Further or in the alternative, the parties to the Reference were given no prior warning of the Assembly's intention to consider the question of the Designation and accordingly were not given a fair hearing, which must it is submitted include a knowledge of the case one is to face and a proper opportunity to prepare to answer that case.
4. The Assembly used the vehicle of the Reference as an opportunity to review its earlier decision, when without that Reference, it would not have had an opportunity to do so. Such amounted to an abuse of process.
5. Further or alternatively, the Applicant had a legitimate expectation, given the time which had elapsed since September 1999 and the date of the hearing of the Reference and the positive report from the Police Task Force (sic) that the designation would not be reimposed and in reliance on that had inter alia spent considerable sums on the premises.
6. In the Premises and generally the Assembly came to a decision that no reasonably (sic) body properly directing itself could have reached."
16. Having been given leave to apply the Appellant's application for judicial review duly came on for hearing before Mr F C Hamon, OBE, Commissioner. In the Appellant's skeleton argument placed before the Commissioner the grounds were grouped under four headings: error of law, lack of fair hearing, abuse of process and unreasonableness. In a detailed and careful judgment the Commissioner rejected the Appellant's contentions and refused the application. Because of the approach to this appeal taken by the Appellant it has not proved necessary for this Court to consider all of the Commissioner's conclusions. The Notice of Appeal specified the following grounds:
"1. That the Learned Commissioner erred in finding that the Assembly had the power/jurisdiction on the proper interpretation of Article 9 of the Licensing (Jersey) Law 1974 to re-impose the designation of the York Bar as a Public Bar, given the matter raised by the Attorney General in the Reference before it;
2. That the Learned Commissioner erred in finding that the Applicant had been given a fair hearing;
3. That the Learned Commissioner erred in finding that the Assembly came to its decision to re-impose the designation on the basis of matters referred to by the Attorney General in his Reference;
4. That the Learned Commissioner erred in finding that the decision of the Assembly was not an irrational one.
5. That the Learned Commissioner erred in law insofar as he failed to find in accordance with each and all of the listed grounds in the Notice of Application."
17. Prior to the hearing of this appeal in a letter dated 2 May 2002 counsel for the Appellant, Advocate David Benest, informed the Court that he did not intend to pursue the issue of lack of a fair hearing (which, incidentally, had included an allegation of suspicion of bias against the Bailiff) and indicated that the Appellant would not rely on ground 2 or on ground 5 insofar as the latter was relevant to the abandoned issue. The letter continued:
"The principal ground of the appeal is therefore in relation to jurisdiction."
18. In its skeleton argument placed before the Royal Court the Appellant sought to define the jurisdiction issue by reference to Article 9 of the Law and contended that the only matters with which the Licensing Assembly was lawfully entitled to deal were those referred by the Attorney General, that the Attorney General had not raised in his reference concerns as to the conduct of the hearing on 23 September 1999, that the Licensing Assembly could not raise any question relating to the 1999 hearing of its own motion and argued that the decision to reimpose the designation was ultra vires allegedly having been based solely on the view the Licensing Assembly took of what had happened at the September 1999 hearing.
19. The Commissioner held that under Article 9 there is no mechanism permitting the Licensing Assembly to reconsider a decision without a reference from the Attorney General. However, he held that there was in the reference sufficient to allow the Licensing Assembly to make the decision it made. The Commissioner said that it was clear that the Appellant had used the York lounge bar as first category premises with fourth category hours. He referred to the accepted facts that following the removal of the public house designation the Appellant displayed a sign at the entrance to the premises stating "York Lounge Bar Open Til (sic) 0100." and that the Appellant had encountered many serious problems in and about the running of the bar. He concluded that it was clear to anyone reading the reference "... that all options remained open to the Assembly."
20. Before this Court, Mr Benest reiterated the arguments on jurisdiction he had advanced to the Commissioner. In her submissions on behalf of the Attorney General, Miss Stéphanie Nicolle, Q.C., Solicitor General, drew attention to the material in the reference setting out the previous designation of the York lounge bar as a public bar (para. 1.7), the removal of that designation (para. 1.8), the effect of that removal (paras. 3 and 4) and the possibility that the Licensing Assembly might wish to reimpose the public bar designation (para. 6(1)). She contended that the "matter" which was before the Licensing Assembly was not only the consequences which followed the removal of the designation but also the possible reimposition of the designation. The Solicitor General argued that (we quote from her written case) "... the fundamental basis of the Assembly's re-imposition of the designation was that the Assembly thought it anomalous that premises should be operated effectively as a first category public house, i.e. catering primarily for members of the public, on fourth category hours."
21. In a case of this sort consideration of jurisdiction inevitably involves examination of both the statute and the decision. Turning first to the Law it is clear that the only relevant mechanism by which the Licensing Assembly may consider "any matter relating to a licence" is on foot of a reference by the Attorney General under Article 9(1). There is no provision whereby any other person (apart from the licensee) may bring a matter before the Licensing Assembly or whereby the Licensing Assembly may consider a matter of its own motion without the imprimatur of the Attorney General in the form of a reference by him. Furthermore, it is clear from the terms of Article 9(1) that the only matter to be considered by the Licensing Assembly on a reference by the Attorney General is the matter referred by him. In our judgment once a matter has been properly referred under Article 9(1) there is no jurisdiction in the Licensing Assembly to purport to consider any other matter. The phrase "having regard to all the circumstances of the case" relates to remedy and does not empower the Licensing Authority to examine any matter not encompassed by the reference.
22. Paragraphs 17 - 21 of the Bailiff's affidavit (set out in paragraph 14 above) describe the material reasoning of the Licensing Assembly and the reasons for the decision. It will be observed that neither reasoning nor reasons relates to what might be called the allegations of misconduct comprised in the reference. Therefore, to be valid, reasons and reasoning would have had to have been grounded on another "matter" or "matters" raised in the reference. However when the allegations of what we have described as misconduct are stripped out of the reference we find that all that is left is a description of the licensing history. We mention in passing that this in stark contrast to the terms of the draft reference to which we have adverted above.
23. In our judgment, the licensing history, without more, cannot constitute "a matter" which, when referred to the Licensing Assembly, confers upon it jurisdiction to exercise its powers under Article 9(1) of the Law. This is because it is only "any matter relating to a licence" and not the licence itself which may be referred. Furthermore, the possibility of the reimposition of the designation as a public bar cannot, of itself, ground a reference. This is because it is clear from the wording of Article 9(1) of the Law that the possibility of reimposing the designation only arises as a consequence of consideration of "any matter". It is not "a matter" in itself.
24. Although what we have said is sufficient to dispose of this appeal in the Appellant's favour, we consider that we should make some further observations on the Licensing Assembly's reasons and reasoning. In our judgment the removal of the public bar designation of the York lounge bar in September 1999 did not establish a late night public house "outside the categories of the Licensing Law" (see paragraph 19 of the Bailiff's affidavit). What was established by the removal was a bar within one of the categories of the Law (namely the fourth category) which the Appellant, under the law, was entitled to keep open to the general public until 1.00 a.m. In permitting and, indeed, seeking to attract members of the public to enter and drink in the bar during the permitted hours after the public bar designation had been removed, the Appellant was acting lawfully.
25. We set out in paragraph 14 of this judgment the description in the Bailiff's affidavit of his exchange with the Solicitor General in the copurse of which he referred to it being an anomaly that premises in respect of which a fourth category licence was held must close at 11.00 p.m., but that the York lounge bar could open to the public until 1.00 a.m. and the Solicitor General agreed. We are sensitive to the intention of the legislature that there be a scheme for restricting the opening hours of fourth category licensed premises where Taverner's business is, in effect, being conducted. However, the perceived anomaly in the instant case is wholly attributable to the original decision of the Licensing Assembly in lifting the designation without imposing conditions.
26. In paragraph 20 of the Bailiff's affidavit it is averred that the Licensing Assembly felt that "... the licensee had made an inappropriate use of the privilege of being able to keep a bar open beyond the permitted hours of a first category licence." In our opinion, once the public bar designation had been removed, the Appellant had the right - not a mere privilege - to keep the York lounge bar open during the permitted hours of a fourth category licence. In our judgment the exercise of that right cannot be said to have been inappropriate per se.
27. Paragraph 21 of the Bailiff's affidavit states the Licensing Assembly's conclusions. These assert that it was not in the public interest nor within the intention of the legislature that it should be possible to operate what was effectively a public house during the hours attached to a fourth category licence.
28. It may or may not be in the public interest for a licensee to operate what is effectively a public house during hours attached to a fourth category licence but this appears to be precisely what is permitted whenever a public bar designation is removed unconditionally from a bar in premises with a fourth category licence. This point was made, in our view accurately, in the Attorney General's letter to the Bailiff of 21 October 1999 (see paragraph 8 above) and the Attorney General has never sought to argue that once the public bar designation was removed the admission of the public to the York lounge bar between 11.00 p.m. and 1.00 a.m. is unlawful per se. There is no mention in the Law of an over-riding "public interest" jurisdiction vested in the Licensing Assembly enabling it to revoke the removal of a public bar designation when all that the licensee has done has been to keep his premises open during the permitted hours and serve alcoholic drinks to those to whom he is entitled to serve them under the Law. As far as the intention of the legislature is concerned, that, in our opinion, is apparent from the Law: If the designation of a public bar is removed unconditionally from a bar in fourth category premises by the Licensing Assembly the intention of the States is that the licensee may sell drink to members of the public for consumption on the premises until 1.00 a.m. This is clear beyond peradventure from Part VII of the Law and there is nothing in that part of the Law or any other part of it from which any other intention may be discerned.
29. Had it been the case that the removal of the designation of the York lounge bar had been achieved by means of some sort of deception perpetrated on the Licensing Assembly then no doubt steps could have been taken to quash the removal. However, as the Bailiff makes clear, there has been no deception in this case. In paragraph 18 of his affidavit he describes what happened as a misunderstanding. It is true that in paragraph 20 he states that the Licensing Assembly felt that the expectation upon which it had made its decision of 23 September 1999 had been disappointed. This may be so but we consider that vindicating that expectation would amount to elevating it to a condition when no such condition was actually imposed. Furthermore, it would involve revisiting the decision of the Licensing Assembly in circumstances not permitted by the Law.
30. The decision of the Licensing Assembly must be quashed. An option open to us is to remit this matter to the Licensing Assembly in order for it to adjudicate on the reference in accordance with law. We have decided against this course on the ground that the allegations made in the reference, albeit very largely accepted by the Appellant, are now stale.
Authorities.
Licensing (Jersey) Law, 1974.
In re Esteem Settlement [2001] JLR 169.
Jersey New Waterworks Co., Ltd.-v-Grouville Rates Assessment Committee [1994] JLR 197.
Council of Civil Service Unions-v-Minister for Civil Service [1984] 3 All ER 935.
R-v-Nailsworth Licensing Justices ex parte Bird [1953] 2 All ER 652.
Associated Provincial Picture Houses Ltd-v-Wednesbury Corporation [1947] 2 All ER 680.
De Smith, Woolf & Jowell: Judicial Review of Administrative Action (5th Ed'n: 1995): p.432.