Jersey Unreported Judgments

2002/55

ROYAL COURT

(Samedi Division)

 

7^th March, 2002 

 

 

 

 

 

IN THE MATTER OF

The Yacht Hotel, Limited  and

The decisions of the Licensing Assembly of 26^th July, 2001.

 

Application by the Yacht Hotel Limited for judicial review of the decision of the Licensing Assembly made on the 25th July, 2001, to re-impose the designation of the York lounge bar as a public bar.

 

Advocate D. J. Benest for the Yacht Hotel Limited;

The Solicitor General for the Licensing Assembly.

 

 

judgment

the COMMISSIONER:

1.        This is an application by the Yacht Hotel Limited for judicial review of the decision of the Licensing Assembly made on the 25th July 2001 to re-impose the designation as a public bar of the York lounge bar which is one of four bars at this long-established hotel.

2.        The company holds a fourth category or comprehensive licence under the Licensing (Jersey) Law 1974 ("the law").  This licence was granted on 16th March 1995 and has been renewed annually.  The York lounge bar (and another bar in the premises with which we are not concerned) is designated as a "public bar".  This requires it to close at 11.00 p.m.  If it did not have the designation as a public bar it could remain open until 1.00 am.

3.        At the Licensing Assembly an application was made by the company to remove the designation.  The application was successful.  There has been much discussion as to what was said to and what was understood by the Assembly when that decision was made.  I shall return to that aspect of this review hearing later in my judgment.  Suffice it to say that two months after the successful application a letter from the Attorney General to the company's legal adviser contains this paragraph:-

           "Although I was not present at that hearing, I understand that the initial basis, at any rate, of the application was that it was not intended for general use by members of the public but that it was desired to use the York lounge bar after 2300 hrs. for residents of the hotel and those who dined at the premises."

4.        The licence granted by the Assembly on 23rd September, 1999, could have contained conditions under the law.  It did not.  It could not be more standard nor more explicit.  It says:-

           "On the application of Yacht Hotel Limited, holder of a comprehensive licence for the premises Royal Yacht Hotel, 1 Caledonia Place, St. Helier, as appears by Act of the Assembly dated 16th March 1995, the Assembly has deleted the designation of the bar on the said premises known as "The York lounge bar" as a public bar".

5.        It is clear that, as from 29th September 1999, the York lounge bar was able to remain open to hotel residents and to the general public until 1.00 a.m.  The Licensing Assembly had the power within the law to have imposed on the licence conditions limiting the sale of liquor after 11.00 p.m., for example, to bona fide residents of the hotel, to bona fide guests of residents of the hotel or to persons who had dined at any specified restaurant of the hotel.  All of these possibilities were open to the Assembly or any one or more of these possibilities.  It chose to impose no conditions whatsoever.

6.        The hotel not only operated the York lounge bar as a public bar but had originally advertised that fact by displaying a sign at the entrance to the premises "York Bar Lounge open til (sic) 0100".  I say "originally" because the sign was later removed.

7.        On 27th September (five days after the decision of the Assembly) the Bailiff  received a letter from the owners of the Pomme d'Or Hotel.  The letter noted that 'The Jersey Evening Post' had reported the decisions of the September Licensing Assembly but that the application (quite properly) had been made ex parte so that there was no opportunity to object.  The complaint is expressed in this paragraph:-

           "The guests of the Pomme d'Or Hotel are subjected to extreme disturbances caused by revelers in the street at night (especially Friday and Saturday nights) as they move from pub to club.  Furthermore, noise emanating from the various licensed premises that offer music and/or dancing can be heard (and felt) clearly outside of those premises.  Such disturbances can continue from early evening 1930/2000 until 0230/0300 hours".

8.        The Bailiff forwarded the letter to the Attorney General.  He also set out his understanding of what counsel had told the Assembly.  In essence, the implication was that the application had been on the back of an assurance that the intention was to cater for the needs of residents.  The letter concludes with these words:-

           "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".

9.        There is much correspondence before me as to what was said and what was not said at the Assembly.  In the absence of a recording of the hearing I can pare the opposing views (if that is what they are) to two documents.

10.      On 2nd December 1999, Advocate O'Connell wrote to the Attorney General and said (inter alia):

           "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 p.m.  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 around 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 between the hours of 2300 and 0100.  I relayed those instructions precisely to the Licensing Assembly".

11.      In his affidavit (sworn after a later hearing) the Bailiff says this:-

           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 hrs.  This was supported by a 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 hrs.  The members of the Assembly felt that if that had been the intention it should have been made clear in September 1999.  the Assembly accepted, however, that there had been a genuine misunderstanding.

12.      I can see no material difference between recollection of the members of the Assembly who sat in September 1999 and the version put forward by Advocate O'Connell.  A "primary" purpose and a "main" purpose seem to me to be one and the same and in the context of the application they were the same.

13.      It was open to the Assembly when it returned to give its reserved decision to impose a condition.  It did not do so.  It could have said that it was granting the application on the understanding that the main or primary purpose was to facilitate the use of the York lounge bar by residents and diners.  It did not do so.

14.      The Attorney General inclined to the view that an early referral would be useful while everything was fresh in the minds of those who applied for and those who reached the decision.  He prepared a referral in these terms:-

           "IN THE ASSEMBLY OF GOVERNOR, BAILIFF AND JURATS

           In the matter of the licence of Yacht Hotel Limited for the Royal Yacht Hotel

           Her Majesty's Attorney General has the honour to request to the Assembly that:

1.        On 16th March, 1995 the Assembly granted a Comprehensive Licence to Yacht Hotel Limited for the premises Royal Yacht Hotel, 1 Caledonia Place, in the Parish of St. Helier.  The Assembly designated the York Lounge Bar as a public bar.

2.        The effect of the said designation was that the York Lounge Bar could not remain open for the sale of liquor after 2300 hours (i.e. the hours fixed for a Taverner's Licence).

3.        On 23rd September, 1999 York Hotel Limited applied for the deletion of the designation of the York Lounge Bar as a public bar.

4.        The Assembly granted the said application.  Although the Assembly did not impose any condition on the granting of the said application, it appears that it may have been the understanding to the Assembly that the purpose of the application by Yacht Hotel Limited was to enable those who resided at the hotel or those who were dining in the restaurant of the hotel to utilize the York Lounge Bar after 2300 hours and that it was not the intention that members of the public generally should be able to enter the York Lounge bar and take advantage of the extended permitted hours.

5.        The Attorney General has received a report dated 31st October, 1999 from the States of Jersey Police which states that the York Lounge Bar is being utilized 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 the doors of the premises stating "York bar open to 0100".

6.        In the premises the Attorney General has concluded that the utilization 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.  In the premises the Attorney General has concluded that he should refer the licence of Yacht Hotel Limited to the Assembly under Article 9 of the Licensing (Jersey) Law, 1974 with a view to the Assembly, after hearing from the licensee, determining whether it is content that the present position should continue or whether it would wish to vary the licence either by re-imposing the designation of the York lounge Bar as a public bar or by imposing certain conditions as to the use to which the York Lounge Bar may be put after 2300 hours.

7.        In the event of the latter, the Attorney General puts forward the following possibilities, or any one or more of them, for consideration, namely that the sale of liquor in the York Lounge Bar after 2300 hours should be limited to:                                   

(1)       residents of the Hotel:

(2)       bona fide guests of residents of the Hotel;

(3)       persons who have dined at any specified restaurant(s) of the Hotel

           WHEREFORE the Attorney General has the honour to bring the above facts to the notice of the Assembly so that it may, by virtue of the provisions of Article 9(1) of the Licensing (Jersey) Law 1974, take such action (if any) as it may think fit.

15.      That referral did not take place and the York lounge bar continued to operate until 1.00 a.m.  There were problems of the Hotel's making and the Task Unit of the States of Jersey Police monitored the premises.  There were serious irregularities.  The Attorney General made a reference to the December Licensing Assembly.  An adjournment was applied for by the licensee and was granted.  The application for a date to be fixed was made in February 2001 and although the hearing was originally fixed for 27th - 29th June it was postponed to 24th - 26th July 2001.  Because of the delay the Task Unit prepared a further report and its conclusion, in summary, was that there was a better level of liaison between the management and the task Unit, that problems were more easily overcome and that the hotel was visibly improved and had reduced the concerns of the Police.  On 22nd March 2001, the Assembly had, on the application of the licensee, approved an increase in the maximum occupancy for the York lounge bar from 110 to 200.

16.      The reference of the Attorney General was presented to the Assembly on 21st December 2000.  It was slightly amended on 23rd January 2001 but the appellant had all the documentation correspondence and reports and had held most of these for a considerable period of time.  It is necessary to set out the Reference that was before the Assembly when it made the decision to which the appellant takes exception.  It reads:-

           In the Assembly of Governor, Bailiff and Jurats

           In the matter of the licence of Yacht Hotel Limited

           For the Royal Yacht Hotel

           Her Majesty's Attorney General has the honour to represent to the Assembly that -

(i)        On 16th March, 1995 the Assembly granted a fourth category or comprehensive, licence to Yacht Hotel Limited for the premises Royal Yacht Hotel, 1 Caledonia Place, in the Parish of St. Helier.

(ii)       The ground floor of the premises is separated into four areas.  Each can be accessed from the main entrance on the corner of the building or via a side entrance at the rear of the premises in Mulcaster Street as shown on the plan attached hereto.

(iii)      Upon entering the premises via the main entrance there is a small cocktail bar immediately to the right.  This area has a permitted maximum of 80 persons although it seldom has more than 20 persons present at any one time.   The bar is set aside for the use of persons residing on the premises and no public access is allowed after 2300 hours.

(iv)      Continuing into the premises and passing the reception area to the right a doorway ahead leads directly into the York Lounge Bar.

(v)       A doorway from the left of the York Lounge Bar leads into a snack bar which gives seated counter service of food and alcohol and a neighbouring room which is set out in a conventional tavern style.  Together these have a permitted maximum of 90 persons.  Both these areas are closed to the public for the sale of alcohol after 2300 hours.

(vi)      A further bar is situated on the first floor of the building and is seldom used.  This bar has a permitted maximum of 25 persons.

(vii)      When the licence was granted in 1995, the Assembly designated the York Lounge Bar as a public bar.  The effect of the said designation was that the York Lounge Bar could not remain open for the sale of liquor after 2300 hours (i.e. the hours fixed for a first category, or taverner's, licence).

(viii)     On 23rd September, 1999, on the application of the licensee, the Assembly deleted the designation of the York Lounge bar as a public bar.  The effect of the removal of the public bar designation was that the bar could remain open for the sale of alcohol until 0100 hours.  The bar has a permitted maximum of 10 persons and access is given to the general public for the sale of alcohol until 0100 hours.

2.        The registered manager is Mr. Alcino Vieira.

3.        Following the removal of the designation of the York Lounge Bar as a public bar, its operation was monitored over a weekend by members of the Task Unit, being the branch of the States of Jersey police with responsibility for the policing of licensed premises.  On 31st October 1999, a report was submitted to the Attorney General which concluded -

(I)        that at the date of the report the premises offered less concern than other premises at the Weighbridge.

(II)       That it was anticipated that the change to the licence would cause a shift of emphasis from The Warehouse [another set of licensed premises in the vicinity] over the forthcoming months.

(III)      That door staff at the premises had been advised of this and were motivated to prevent any problems arising.

(IV)     That the premises would continue to be monitored for significant change.

(ix)      Following the removal of the designation of the York Lounge Bar as a public bar the licensee displayed a sign at the entrance to the premises stating "York Lounge Bar Open Til 0100".

(x)       The York Lounge Bar is often full to capacity with the only restriction being space.  Although it is difficult to determine an exact number of persons in the bar it has on a number of occasions been found to be in excess of 110.

 

Particulars

 

Date and Time	Approximate Numbers	Further information
16/6/00, 23.20	160	Wpc. Le Chevalier and Pc Porter informed Mr. Vieira that the numbers in the bar were in excess of the licence. The doors were only closed to prevent more people entering after Inspector Aubert had been called and requested the attendance of a Fire Safety Officer.
1/7/00,23.10	200-204	Wpc Le Chevalier and Pc Sheridan counted the numbers using automatic clickers.  They had difficulty walking through the bar because it was so crowded.
12/8/00	160	Wpc Le Chevalier and Pc Sheridan counted approximately 160 people n the bar.
18/11/00	150	Wpc Le Chevalier and Pc Sheridan counted approximately 150 people in the bar.

 

 

(i)        Since the removal of the designation of the York lounge bar as a public bar the number of incidents requiring police attendance increased.  On occasions officers visiting the premises have noted an excessive level of intoxication among patrons.

 

 

Date	Incident
1/4/00	PcVane and Wpc Holt attended at the premises following a complaint of assault.  They could not record as formal complaint from the complainant because of his level of intoxication.  While dealing with the complaint Pc Vane noted that many of the patrons on the premises were in a heavily intoxication condition and were in his opinion too intoxicated to be served further with alcohol.
10/11/00	Pc Clarkson and Pc Sheridan attended at the Royal Yacht after a group of five patrons had caused concern.  Two of the group, who had just left the premises, were extremely intoxicated.
23/11/00	Pc Porter and Wpc Le Chevalier attended at the Royal Yacht at the request of Mr. Vieira and placed her head on his left shoulder.  She then said to Mr. Vieira "Mr. V., I'm so drunk"  She was very unsteady on her feet, her speech was slurred and she appeared to be intoxicated.

During the period September, 1999 to June, 2000 the number of incidents recorded at or in the vicinity of the Royal Yacht Hotel increased considerably over the number of offences recorded in the same area for the period September 1998 to June 1999.

Since July, 2000, the following offences have been recorded at or near the premises:

(i)        Four arrests outside the premises for disorderly behaviour and refusing to obey police orders.

(ii)       Three persons arrested for disorderly behaviour inside the bar.

(iii)      Five persons arrested for offences of violence.

(iv)      Two arrests for damage to the premises by patrons.

(v)       One report submitted in relation to persons under the age of eighteen years purchasing alcohol.

(vi)      One arrest has resulted in the location of illicit drugs.

(vii)      Two persons reported for fouling the road by urinating in the vicinity of the premises.

(viii)     One report of resisting has been submitted.

(ix)      Attempts by the Task Unit to resolve the problems following the removal of the public bar designation by working with the manager have had little or no success.                

Particulars

On 31st March 2000 Inspector Adamson and Sergeant Le Troquer met with Mr. Vieira.  They drew his attention to the excessive consumption of intoxicating liquor by customers on the premises, particularly in the York Bar.  They informed him of the dangers of employing unregistered door staff.   They advised him to brief the bar staff and door staff to be more vigilant regarding intoxicated persons on the premises.  They advised him that he should himself continually walk round the premises monitoring the condition of the customers.

           In the small hours of the following day, 1st April, 2000, Pc Vane and Wpc Holt attended at the premises following an incident.  They found that many of the customers were heavily intoxicated and too intoxicated to be served or be on the premises.  The door staff who dealt with the incident were unregistered and in the opinion of the officers attending exacerbated the problem.

           On 3rd April 2000, Inspector Adamson wrote to Mr. Vieira recounting the above and warning him that should there be further breaches of the conditions of the licence or of the Licensing Law the matter would inter alia be referred to the Attorney General who could refer to the Licensing Assembly under Article 9 of the Law.

           On 5th July, 2000, Inspector Adamson wrote again to Mr. Vieira.  He stated that the Task Unit had continued to monitor the premises and had identified two occasions when there had been overcrowding on the premises and there had been incidents of public order and drunkenness.  He stated that he had reported the findings to the Attorney General and repeated the warning that the Attorney General might refer the matter to the Licensing Assembly without further warning.  Just over one month later, on 12th August 2000, officers found approximately 160 persons in the York Bar.

           Following the warnings from Inspector Adamson Mr. Vieira ceased to employ the unregistered door staff but subsequently re-employed an unregistered doorman who has been the subject of warning from the police.

           4.4        The appointment of door staff does not at all times follow best practice in that door staff have been employed who are not registered under the Door Registration Scheme.  The scheme is voluntary and is intended to ensure that unsuitable persons are not employed as door staff.  Although the use of unregistered door staff is not in breach of the law, it gives rise to the risk of employing unsuitable door staff, which in turn leads to a higher level of incidents requiring police attendance at the premises, and a reduced likelihood of cooperation by door staff with the police.    

 

Particulars

           Mr. Vieira employed as a doorman one Jose Conceicio, also known as Tony Conceicao, who has been refused registration under the Door Registration Scheme.  After warnings from the Task Unit he ceased to employ him, but then re-employed him while he was still unregistered.

(x)       Between 24th April and 8th May the manager was absent from the Island.  In respect of that absence -

(a)       Article 20(1) of the Licensing (Jersey) Law, 1974, provides, so far as it is relevant, that where the manager of a business in respect of an on-licence is held will be absent from the Island he shall, where the period of absence does not exceed thirty days during a period of six months, obtain the approval of the Constable of the parish concerned to the person who will deputise for him in his absence.  The notification given by Mr. Vieira was not received by the Constable till 26th April, two days after the date upon which his absence was to commence.

(b)       Article 20 further provides that where the business is conducted on registered premises, defined in Article 1 to mean premises registered in pursuance of the Tourism (Jersey) Law, 1962, he shall obtain the approval of the Committee, defined to mean the Tourism Committee, to the person who will deputise for him.  Mr. Vieira did not obtain the approval of the Tourism Committee.

(c)       A visit to the premises during the period of Mr. Vieira's absence found a Mr. Steven Riley, manager of the Forum Wine Bar, in charge of the premises.  Mr. Riley was not a person who had been notified to the Constable as deputizing for Mr. Vieira.

           5.         It appears to the Attorney General that the conduct of the business on the premises is unsatisfactory.

           6.         The Attorney General has concluded that he should refer the licence of Yacht Hotel Limited to the Assembly under Article 9 of the Licensing (Jersey) Law 1974 with a view to the Assembly, after hearing from the licensee, determining -

 

(1)       whether it would wish to vary the licence either by re-imposing the designation of the York lounge bar as a public bar or by imposing conditions as to the use to which the York Lounge Bar may be put after 2300 hours;

           (2)        whether it would wish to make any other order in respect of the licence.

1.        In the event that the Assembly decides to vary the licence by imposing conditions as to the use to which the York Lounge Bar may be put after 2300 hours, the Attorney General puts forward the following possibilities, or any one or more of them, for consideration, namely 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.

           Wherefore the Attorney General has the honour to bring the above facts to the Notice of the Assembly so that it may, by virtue of the provisions of Article (1) of the Licensing (Jersey) laws, 1974, take such action (if any) as it may think fit.

           Presented to the Licensing Assembly, 21st December, 2000

           Amended version, 23rd January, 2001".

17.      It will be seen that this reference is not similar to the earlier draft reference to which I have referred earlier in this judgment.

18.      The reference was read in its entirety to the Assembly.  The way that matters progressed apparently took counsel for the applicant by surprise, particularly as he had prepared and agreed with the Solicitor General (who appeared before the Assembly and who appears before us today) a Statement of Facts.  It is what it claims to be - a fair and detailed summary of facts, concluding with the latest and more favourable report of the Task Unit which had been prepared on 8th July 2001.

19.      The Statement of Facts was also read to the Assembly.

20.      At times when reading the reference the Solicitor General was questioned by the Bailiff, who has most helpfully sworn an affidavit for the purposes of this hearing.

21.      At paragraph 4.1 the Bailiff reminded those present that at the September 1999 hearing the Bench had thought that the removal of the public bar designation was to enable guests and diners in the hotel to drink after their meal.  The Solicitor General took the Bench through relevant correspondence and referred the Bench to a memorandum from a legal assistant in the Law Officers' Department to the Attorney General on 20th October 1999.

22.       Having read the Reference and the agreed Statement of Facts and having referred the Bench to relevant correspondence from both sides, the Solicitor General read the report of P.C. Porter of July 2001.

23.      The Solicitor General was closely questioned on the apparent anomaly of this bar remaining open until 1.00 a.m.  The Solicitor General told the Assembly that it was for the Assembly to decide whether it was appropriate to attach a condition that it could have applied in September 2000.

24.      The Bailiff, as President of the Assembly, asked Advocate Benest to address the Assembly on the anomaly in respect of the hours.  At this point, Advocate Benest was made aware that there was no question of the licence being removed.  He did not apply for an adjournment;  he did not enquire as to why the question was being put to him.   He questioned P.C.Porter as to other properties in the area and then apparently satisfied with the explanation addressed the Assembly as to the proper manner in which the premises were now controlled.

25.      The Assembly retired.  The affidavit of the Bailiff is at this point invaluable as the deliberations of the Assembly took place behind closed doors.  He deposed as follows:-

           "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 upon 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 penalize 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 re-impose the designation."

26.      Advocate Benest made a note of the reasons given by the Bailiff.  It reads as follows:

           "Note of Judgment of the Assembly, delivered by the Bailiff, on 25th July 2001

           In September 1999 an ex parte application was made to the Assembly to remove the designation from the York Lounge Bar at the Royal Yacht Hotel as a public bar.  The recollection of the Assembly reinforced by the president's note is that the main purpose of the application was to allow guests staying at the hotel to use the bar after 11.00 p.m.  It is clear, however, from what  the Solicitor General and Mr. Benest told us this morning that a misunderstanding arose on the part of the applicant company as to what had been intended.

           It was the intention of the Assembly that there should be no substantial change in the nature of the business conducted at the premises.  The purpose of the removal of the designation was simply to benefit the residents of the hotel and the Assembly did not envisage that a sign would be erected advertising the late opening of the bar to the public.  We think that if that was what was intended it should have been made clear.

           We accept however that there has been a genuine misunderstanding on the part of the applicant.

           That said, what has been created is a late night public house which is outside the categories recognized under the Law.  That cannot be allowed to continue.

           We have considered the attaching of conditions in relation to the use of the bar but do not think that a practical solution.

           One matter which we should mention is that the delay in this matter coming to court is unfortunate and that it is principally due to the indication at the outset that  this matter would take three days.  In the event it has taken little more than an hour.

           We would re-impose the designation to the York Bar as a public bar."

27.      In Jersey New Waterworks Company v Grouville Rate Assessment and Ors.(1994) JLR 197 at 211, the Court said this:-

           "The principles which govern judicial review are well-known.  They were set out in B.H.Rowland v Finance & Econ. Cttee (1981) JJ 173. Following these principles we have asked ourselves three questions:-

(a)       Were the decisions of the Assessment Committees and the Supervisory Committees ones which they could lawfully make under the law? 

(b)       Were the proceedings of the Assessment Committees and the Supervisory Committee in general sufficient and satisfactory? And

(c)       Were the decisions of the Assessment Committees and the Supervisory Committee one to which they could reasonably have come, having regard to all the circumstances? 

           If the answers to all three questions are in the affirmative then we have a clear duty to maintain the decisions".

28.      Advocate Benest also cited the case of Council of Civil Service Unions v Minister for Civil Service (1984) 3 All ER at 950.

           "Judicial review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review.  The first ground I would call 'illegality', the second 'irrationality' and the third 'procedural impropriety'."

           By 'illegality' as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable.

           By 'irrationality' I men what can now be succinctly referred to as 'Wednesbury unreasonableness' (see Associated Provincial Picture Houses Ltd. V. Wednesbury Corp [1947] 2 All ER 680 [1948] 1 KB 223]  It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.  Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system.  To justify the court's exercise of this role, resort I think is today no longer needed to Viscount Radcliffe's ingenious explanation in Edwards (Inspector of Taxes) v Bairstow [1953] 3 All ER 48 [1956] AC 14 of irrationality as a ground for a court's reversal of a decision by ascribing it to an inferred though unidentifiable mistake of law by the decision-maker.  'Irrationality' by now can stand on its own feet as an accepted ground on which a decision may be attacked by judicial review.

           I have described the third head as 'procedural impropriety' rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision.  This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice. But the instant case is not concerned with the proceedings of an administrative tribunal at all."

29.      There were two other authorities cited to me.  De Smith, Woolf & Jowell's well known work Judicial Review of Administrative Action (5th Edition) says this at 9-004:-

           "Procedural fairness generally requires that persons liable to be directly affected by proposed administrative acts, decisions or proceedings be given adequate notice of what is proposed, so that they may be in a position -

(1)       to make representations on their own behalf, or

(2)       to appear at a hearing or inquiry (if one is to be held) and

(3)       effectively to prepare their own case and to answer the case (if any) they have to meet".

30.      I then had drawn to my attention the well known passage on "recusal" set out by the Court of Appeal in In the matter of the Esteem Settlement and the No. 52 Trust (2001) JLR 169 CofA. I shall explain the reason for the inclusion of these two authorities and of the dicta of Lord Goddard in R-v-Nailsworth Licensing Justices (1953) QBD 652 as I examine the arguments and counter arguments of the parties.

31.      The first ground is one of 'illegality'.  The applicant turns to Article 9 of the Law and says that the Assembly did not have the power under the Licensing Law to do what it did.  The provisions of Article 9(1) say that when 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 that 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 or attach conditions to it.

32.      Article 9(2) says that when considering "any matter submitted to it" under Paragraph (1) the Assembly shall be entitled to hear any person in connection with "the matter under consideration".

33.      Before considering the way that matters proceeded in July 2001 and whether or not I should interfere with the decision that was made.  I need to examine the question that the applicant raises as to whether, in the particular circumstances, the Bailiff should have sat at all.

34.      When the Bailiff wrote his letter of 18th October 1999 to the Attorney General (the letter that enclosed a copy of the letter from Seymour Hotels Limited) the Bailiff expressed a firm view of what was said to the Assembly at the ex parte application and why the Assembly agreed to remove the designation.  A copy of the letter had been supplied to the applicant by the Attorney General as early as 29th November 1999.  if there were a "reasonable suspicion" of bias it could (and should) have been raised before or at the Licensing Assembly that was held over six months later.  Even if (and I shall of course examine this aspect) the applicant were taken by surprise, I fail to see what the "suspicion of bias" can be. The Bailiff was reporting how the Assembly had interpreted what it had been told and why it had made its original decision.  Even if the tests so clearly set out by Vaughan J.A. in In re Esteem Settlement  had been met (and the Bailiff was, in my view, reflecting the view of the Assembly as a whole and not his personal view) the timing of the protest is too late.  The applicant had every right to raise the matter before the hearing.  It did not do so.  It could have raised it at the hearing. It did not.  The facts of R v Nailsworth Licensing Justices need not concern us here.  Suffice it to say that it was held (in part) that "the objection could and should have been made before the decision of the justices had been announced, and on that ground also, the Court in its discretion, would refuse the application".

35.      I have no hesitation in rejecting this part of the application, not only because it was too late to make an objection after a decision unfavourable to the applicant is announced.  I must make it clear that I cannot see that the remarks of the Bailiff viewed objectively were sufficient to give rise to a reasonable or any suspicion of bias.

36.      Let me now examine the three main headings of contention:

(1)       Error of law.

  The submission that under Article 9 of the Law there is no mechanism to permit the Assembly to reconsider a decision without a reference from the Attorney General is correct.  Was there in the reference that was before the Assembly sufficient to allow it, in law, to make the decision that it did?  It is clear that the applicant had used ((as the law allowed following the removal of the designation) the York lounge bar as first category premises with fourth category hours.  The company had, as soon as the decision was made by the Assembly, put up a notice designed to attract members of the public ("York Bar Lounge open Til 0100") and had encountered many serious problems (overcrowding, drunkenness, public disorder, and the absence of the door staff and the manager).  These had been regulated.  It is very clear to anyone reading the reference that all options remained open to the Assembly.

  The Attorney General after summarizing the facts says -

  "It appears to the Attorney General that the conduct of the business on the premises is unsatisfactory". He then goes on at paragraphs 6 and 7 to give alternatives to the Assembly, one of which is to ask  "whether it would wish to vary the licence either by re-imposing the designation of the York Lounge Bar as a public bar ..."   the Assembly was invited to "take such action (if any) as it may think fit".

   In my view, in re-imposing the designation, the Assembly was acting on the reference and was not acting in excess of the jurisdiction conferred upon it by Article 9.  the decision was made "in the circumstances of the case".

(2)       Fair Hearing.

  This case was set down for two days.  The hearing lasted less than half a day before the decision was made.  No application was made for an adjournment.  If an application had been made and refused then there might have been a strong point of argument.  Advocate Benest puts the matter descriptively.  He said he brought to court papers to deal with the evidential matters set out in the reference and only those matters.  An adjournment, if granted, would have enabled counsel to gather up the missing papers and deal as he wished with the matter on the points that caused the Assembly the overriding concern.

(3)       Abuse of Process.

  Because I have held that the Assembly had legal power to reconsider the 1999 decision there was, in my view, no abuse of process.

(4)       Unreasonableness.

  Irrationality in public law is based on the principles enunciated in Associated Picture Houses Ltd. V. Wednesbury Corporation (1948) 1 KB 223. I can, despite all that has been said of the other points, still quash the decision if I can conclude that no person properly directing himself as to the relevant law could reasonably have reached that decision on the material before him or, if the decision is otherwise irrational.

  In my view it is not enough to say that the Assembly had no regard to the material before it considering instead other matters entirely within its own recollection.  Certainly the note of the judgment made by counsel on 25th July makes no mention of the specific matters of concern contained in the reference but the Assembly had the whole of the reference read to it, all the relevant correspondence was before it, including the memorandum of Françoise Binet, a legal assistant in the Law Officers' Department.  P.c. Porter gave evidence.  When Advocate Benest addressed the Assembly, he covered all the points of concern.  The Bailiff's affidavit states that very clearly:

  "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 organization 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."

37.      In my view with the documentary evidence, the evidence of P.C. Porter and the reference of the Attorney General which was read to the Assembly and the fact that there was no significant difference between the recollection of the members of the Assembly and the version put forward by Advocate O'Connell, it is impossible to find that the Assembly acted unreasonably.

38.      In the circumstances, I decline to interfere with the decision of the Assembly and I order accordingly.

Authorities

Licensing (Jersey) Law 1974.

Jersey New Waterworks Company v Grouville Rate Assessment and Ors.(1994) JLR 197.

Council of Civil Service Unions v Minister for Civil Service (1984) 3 All ER at 950.

De Smith, Woolf & Jowell: Judicial Review of Administrative Action (5th Ed'n) : 9-004.

In the matter of the Esteem Settlement and the No. 52 Trust (2001) JLR 169 CofA.

R-v-Nailsworth Licensing Justices (1953) QBD 652

Associated Picture Houses Ltd. V. Wednesbury Corporation (1948) 1 KB 223.