Jersey Unreported Judgments

Licensing - representation to the Assembly to revisit decision of 20th December 2013 regarding breaches of 3rd and 7th category licences.

[2015]JRC048

Royal Court

(Samedi)

25 February 2015

Before     :		W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Clapham, Fisher, Kerley, Blampied and Grime
Between	HM Attorney General		Representor
And	MFA Licensing Limited		Respondent

IN THE MATTER OF ARTICLE 9 OF THE LICENSING (JERSEY) LAW 1974 IN RELATION TO THE 3^RD AND 7^TH CATEGORY LICENCES OF MFA LICENSING LIMITED FOR JERSEYBOWL LIMITED

H. Sharp QC, Solicitor General, for the Attorney General.

Advocate A. D. Hoy for the Respondent.

judgment

the deputy bailiff (now bailiff):

Introduction

1.        The Attorney General presented a representation to the Assembly on 28^th October, 2014, inviting the Assembly to revisit its decision on 20^th December, 2013, to grant licences to the respondent under the Licensing (Jersey) Law 1974 ("the Law") on the basis it was not provided with all the information relevant to the decision which it took at the time, to consider in the light of the new information whether or not the respondent was fit to continue to hold liquor licences and to order the respondent to pay the Attorney General's costs.  A special sitting of the Assembly took place on 6^th January, 2015, when evidence was heard.  At the conclusion of that sitting the Assembly imposed a fine on the respondent in the sum of £25,000, to be paid within six months, and indicated that its reasons would be handed down later.  This judgment contains those reasons. 

Background

2.        The Assembly granted third and seventh category licences to the respondent in respect of the premises known as the Jersey Bowl, St Peter, on 20^th December, 2013.  The Advocate presenting the applications for those licences described the application as "in effect a transfer from Jersey Bowl to MFA Licensing Limited".  There was discussion between him and the Assembly in relation to Article 70 of the Law which requires that a seventh category licence shall not be granted in respect of any premises unless the Bailiff is prepared to grant a permit for entertainment on the premises or has certified in writing that no such permit is required for the purposes for which it is intended that the premises should be used.  He went on in that connection to say that "the premises haven't changed, what's on offer hasn't changed, so it's hard to understand why a new letter would be required each and every time that there is in effect a transfer of a licence from one licence holder to the other."  He added that "what my client would say is this, is that the premises are not going to be used for any purpose that is different than was previously used".  In answer to the question as to whether the premises had been altered in any way, he confirmed that there had been some alteration made to a function room, which did not concern this particular application, and those changes only related to improvements to fire safety, the moving of fire doors and lighting etc.  Finally he added that the only other change that was being undergone at that time was further fire precautions in the kitchen area. 

3.        The application had been unanimously approved at the Parish Assembly and there were satisfactory Environmental Health and Fire Service reports.  The only person to speak at the Parish Assembly was Centenier Zimmer - he did not appear at the Licensing Assembly - but the Connétable of St Peter reported to the Licensing Assembly that the Centenier was one of the officers who regularly attended at the Jersey Bowl to ensure that it was appropriately run.  The Centenier had been very warm in his appreciation of the general management of the Jersey Bowl throughout the whole of the preceding year.  With regard to changes, there had been no attempt to change either the services or the facilities of the Jersey Bowl and the application was "merely to recognise the change of ownership and therefore transfer the licence to the new owner to ensure compliance with the law". 

4.        On that basis, the Assembly granted the application, albeit indicating that the seventh category licence would not take effect until the respondent received the Bailiff's permit or a certificate in writing that no permit was required for the purposes for which the premises were intended to be used.  The conditions which were attached to the grant of the licence were substantially the same as those which were attached to the licence granted to the previous licensee: firstly the premises were to remain closed to the public after midnight each day, secondly there should be no dancing or cabaret on the premises and thirdly there was a restriction on permitted numbers on the premises at any time, not to exceed a total occupancy of 300 people, and with maximum occupancy of specific areas, excluding members of staff but subject to the total occupancy restriction, the maximum occupancy of the bar area being limited to 100 persons, the function area to 60 persons, the bowling/fast food area 200 persons and the skating area/games room 60 persons.  The third category licence was limited to the lounge bar area and the function rooms and all security staff were to be members of the Door Registration Scheme. 

5.        The small changes in the licensing conditions introduced by the grant of the licences in 2013 were the requirement for security staff to be members of the Jersey Door Registration Scheme and the total occupancy in respect of the licensed premises of 300.  That total occupancy had not previously existed, and there had merely been the occupancy restrictions in relation to specific areas which clearly total 420 persons.  Those occupancy restrictions had been slightly varied in 2003 following alterations to the licensed premises, but in essence these conditions had been in place since the provisional licences were granted in 1993 to Jerseybowl Limited. 

The acquisition of the business

6.        Those having been the material points put to the Licensing Assembly on 20^th December, 2013, it is now appropriate to look at the actual facts.  When an application is described as "a transfer" that is understood by the Assembly and by all those who regularly practise before it to mean that the premises were previously licensed with the same categories of licence as are currently applied for and there has been a change of ownership in relation to the business being conducted.  The Assembly is being impliedly told that this is a routine application which is not contentious.  As is apparent from what follows, that was not a correct representation of the position by MFA Licensing Limited in December 2013. 

7.        The licence holder up to that date had been Jerseybowl Limited, whose licence would expire on 24^th December, 2013.  In fact Jerseybowl Limited had sold the business to a company called Garland Leisure Limited ("Garland Leisure"), a company in the same beneficial ownership as the respondent, two years earlier on 16^th December, 2011.  That agreement contained a number of provisions which are of interest:-

(i)        The business sold was the bowling centre business carried on by the vendor at the premises, but excluding the right to trade under the name Jersey Bowl. 

(ii)       Completion would take effect on 16^th December, 2011. 

(iii)      The purchaser would offer each of the employees contracts of employment with the purchaser on terms that did not differ, wholly or in part, from the corresponding provisions of the employees' existing contracts of employment with the vendor.' 

(iv)      The vendor would maintain the licences in force until the holding of the March 2012 sitting of the Licensing Assembly, and would do nothing to cause the forfeiture of those licences until March 2012, but would forfeit them at that sitting.  The purchaser was entitled to operate the licences as delegate of the vendor but entirely for the purchaser's benefit without any payment of remuneration to the vendor.  The purchaser indemnified the vendor against any debts or liabilities arising out of the liquor licences incurred on or after the completion date. 

8.        Mr Medhi Farahmand Afshar signed the agreement on behalf of the purchaser, Garland Leisure.  He was its beneficial owner. 

9.        Notwithstanding the terms of the agreement, the vendor did not surrender the licences, and the purchaser did not apply for fresh licences.  Garland Leisure operated the business under the name of Jersey Bowl.  It appears the business continued as hitherto, albeit that it was run more profitably and in other respects more efficiently. 

10.      When he came to give evidence, Mr Afshar told us that he did not recall whether new contracts in the name of Garland Leisure had actually been issued to the employees.  He did not deal with the liquor licences because he was told by Mr Dean Cheetham that he was the licence holder, and Mr Cheetham continued to be employed.  When he gave his evidence before us, Mr Cheetham said that he believed that he was the licence holder and not merely a manager.  His name was above the door and he used to take the licence along to the Treasury for renewal each year, just as he had hitherto. 

The Event

11.      The next relevant matter is that an event took place on 22^nd June, 2013, ("the Event") at Jersey Bowl.  This was called the Duke Dumont Carnival, which ran during the day as an outside Brazilian BBQ from 3pm, through to a dance event until 2am on Sunday 23^rd June.  According to Mr Cheetham, the Event was hosted by Rocksteady promoters, who were the organisers.  Jersey Bowl provided only the venue and had the benefit of increased drink and food sales.  The organisers provided everything else from licensed door staff, coach transport to and from the premises into town, music, disc jockeys, music systems, effect systems to all the other paraphernalia needed for an event of this kind.  It was the organisers who sold the tickets and had the tickets receipts, and the business at Jersey Bowl did not receive any share of ticket sales.  On social media at that time it was reported that "due to popular demand and high volume of ticket sales Jersey Bowl have kindly agreed to increase the capacity to 900 and will be adding three new bars (six in total) including an oxygen bar".  This was regarded by Mr Cheetham as what he called "sales puff to boost interest" and he disputed that there were 900 ticketholders at the event that day.  However, in his interview with the police subsequently, he did agree that he had allowed Rocksteady to issue 800 tickets as a maximum.  If 900 tickets were sold, there should only have been 800 as far as he was concerned.  He added that there was not an oxygen bar either.  Indeed he said there were only three bars.  It was clear from his evidence both before us and in the question and answer interview with the police that management of the Event had in effect been delegated to the organisers. 

12.      Members of the Licensing Unit attended at Jersey Bowl during that evening.  The first attendance was at approximately 7pm, when three members of the Licensing Unit attended in plain clothes, intending to conduct a routine licensing check.  They noted that there was one doorman at the entrance to the beer garden, but other than that they were able to walk through the premises without being stopped at any time by any security staff, nor indeed were they asked for a ticket.  The premises were not at that stage busy and nothing seemed untoward.  However, as they were attempting to make an exit through the main entrance/exit to the building, the glass double doors were locked.  This was unacceptable and Mr Cheetham was asked why this was so.  He explained that it was a ticketed event and the doors were locked to control entry.  It was said to him that these doors were emergency exits and had to be unlocked whilst the premises were open, and Mr Cheetham agreed to have them unlocked immediately.  The officers then walked with Mr Cheetham to a fire exit from what became known as the "rave cave" where a DJ (disc jockey) was setting up at the far end of the room.  They walked with Mr Cheetham out through the fire exit, and found there were numerous cables and electrical wires running across the exit between the DJ set and the small room at the right hand side of the exit corridor.  In the corridor were a number of boxes stacked up.  Mr Cheetham was told this was also unacceptable and had to be free of clutter, and he immediately instructed a member of staff to clear the clutter and secure the wiring. 

13.      The officers returned at 23:35 hrs, this time in full high visibility uniform.  The premises were much busier with several hundred patrons present.  DJs were performing in all three locations.  The officers found one patron who was drunk and he was arrested. 

14.      The officers returned at 01:07 hrs because they had not been happy with what they had seen on the first occasion.  In addition members of the Honorary Police of St Peter had requested that the officers should re-attend.  They found a female who was extremely drunk.  The music was loud and amplified through several speakers within the marquee.  There were numerous patrons dancing to the music and numerous others sitting on benches provided.  The main bar and restaurant was extremely busy.  Again there was a DJ performing loud, amplified dance music.  The area was so full it was difficult to get through the room.  They went into the rave cave, which was extremely busy.  The officers thought there were several hundred persons in that room alone, and PC Malzard told us that she did not walk through that room as she felt it was unsafe to do so.  She went to the main entrance doors and spoke with a member of staff who was employed as a mechanic at the Jersey Bowl.  He had had no door security training or no knowledge of licensing matters, no fire awareness training and no first aid training.  He was upset and said he was uncomfortable at being put in a position for which he had not been trained. 

15.      The officers did not know at that stage whether a Bailiff's permit had been granted for this particular evening.  PC Malzard told us she became aware of a buzzing noise and noted that the fire alarm had been partially disabled.  Mr Cheetham explained that he had done this because the smoke machine would cause it to activate if it remained on.  Mr Cheetham said at that time that 550 tickets had been sold, although subsequently he told the officers that he had authorised 800.  Even if 550 had been the correct number that was 130 people over the maximum unless they were outside. 

16.      As PC Malzard was making an exit from the premises, she walked along the alleyway running between Jersey Bowl and Jersey Rugby Football Club and she tripped over a roll of what appeared to be AstroTurf.  The alleyway was unlit and was in complete darkness.  The fire exit from the rave cave exits on to this alleyway.  This alleyway may not be on Jersey Bowl property. 

17.      PC Malzard operated a small handheld video camera, and we saw some of the recording which she made.  It was quite apparent that there were very large numbers of people in the Jersey Bowl at the time of her recording, namely 01:45 hrs.  She took a further recording at 02:17 hrs from within the rave cave.  The event had now finished, but the recording shows large numbers of cans, glasses, bottles and plastic vessels on the window ledges and on the floor and a large quantity of smashed glass on the carpeted floor which was being used as a dance floor.  The fire panel had still been deactivated.  Within the children's soft play area, part empty glass vessels littered the floor and the play area itself.  PC Malzard spoke with a Mr Rory Neil, head of security, who told her that to the best of his knowledge 850 tickets had been sold for the Event.  Six security staff including himself had been supplied, of whom five were registered door staff.  Mr Neil said he was not happy with the Event or the lack of security staff available as he had originally asked the organisers to provide nine. 

18.      PC Malzard tried to speak to one of the Event organisers, a Mr John O'Connell.  Mr O'Connell asked for a few seconds, before walking off, and did not return. 

19.      Patrons were still leaving the premises at 02:45 hrs.  At this time there were two coaches parked outside.  One of the police officers was trying to load the coach safely with those patrons.  There were no security staff available to help him, and the driver of the second coach was said to be extremely unhappy with the lack of security staff assisting in the loading of the coaches and he felt the situation was very unsafe. 

The investigation

20.      As a result of the matters noted by the officers at the Event, Mr Cheetham was invited to attend for interview, which he did on 8^th July. 

21.      A very lengthy interview was carried out with Mr Cheetham on 8^th July.  PC Malzard told him he was asked to attend because he was the licence holder at Jersey Bowl, but her evidence more generally was to the effect that she understood the licence was held by Jerseybowl Limited at that time.  The interview proceeded on identifying a number of difficulties in relation to the Event - the breach of the dancing condition, the breach of the numbers condition, the lack of security staff, the lack of staff to clear glass and other debris, the problems with boarding patrons on to the coaches at the end of the evening and the problems in relation to fire safety.  Mr Cheetham accepted some of the criticisms made, but he was of the view that the organisers were responsible for many of the difficulties as well.  It is clear that Mr Cheetham told Mr Afshar on 27^th June that he was being called to an interview in July, and after that interview Mr Cheetham confirmed to him that the police had discussed a number of issues with emphasis on the intoxicated individual who was arrested outside.  

22.      It appears that arrangements were to be made for a further event to take place on 27^th July at Jersey Bowl.  An advertisement by Housetrap shows that there would be limited invitations for that particular evening with tickets costed at £12, the event described as a "summer sizzler" and to last between 9pm and 2am.  Mr Afshar in his evidence indicates that on his instruction, and that of the company's operations director, Mr Cheetham cancelled the event, which was then moved to another location.  We think that he did so in the light of his awareness of the difficulties which had arisen on 22^nd June although Mr Afshar was unwilling to make that concession in his evidence. 

23.      In July/August 2013, Mr Afshar resolved that a company restructuring was necessary.  The reason for the restructuring is not entirely clear, but the implementation of it required that the sub-lease of Jersey Bowl to Garland Leisure was assigned to MFA Properties Limited a sister company of the respondent.  Mr Afshar told us that at the time work was done on the arrangements for the assignment of the sub-lease, he became aware of the difficulties concerning the licence.  He thought that his lawyer, who dealt with the acquisition of the business from Jersey Bowl Limited in the first instance, should have made arrangements for the timely transfer of the liquor licences to Garland Leisure, and that it was a surprise to him that Mr Cheetham was not the holder of the licences personally.  Garland Leisure in fact went into voluntary liquidation on 5^th November, 2013, when documents were filed with Companies House.  Mr Afshar deposes that apart from the landlords of onerous leases, there were no creditors of Garland Leisure, save some inter-company loans which were taken as group losses.  The liability to Garland's English lawyers was paid by one of the other group companies.  The respondent was incorporated on 30^th October, 2013, to run the business of Jersey Bowl, so that that business could continue notwithstanding Garland Leisure being put into voluntary liquidation.  Prior to 5^th November, the respondent no doubt applied for the new liquor licences which gave rise to the Parish Assembly and the Assembly subsequently considering those applications. 

24.      PC Malzard spoke to Mr Afshar over the telephone on 3^rd October, 2013.  This was undoubtedly a lengthy conversation, lasting for some 34 minutes.  PC Malzard told us that the purpose of the call was to inform Mr Afshar that he would be required to represent Jersey Bowl Limited when that company was charged with licensing infractions; she told him the details about the licensing visits conducted on 22^nd June, 2013, and she says she informed him of the offences which had been committed on that day including:-

(i)        Having no permit for disc jockeys contrary to the terms of Article 1(1) of the Unlawful Public Entertainments (Jersey) Regulations 2010. 

(ii)       Over-occupancy of the premises (breach of a licensing condition) contrary to Article 79 of the Law. 

(iii)      Permitting persons to go on licensed premises after permitted hours contrary to Article 73(b) of the Law. 

(iv)      Selling alcohol after the permitted hours (breach of a licensing condition) contrary to Article 79 of the Law. 

(v)       Permitting drunkenness on licensed premises contrary to Article 12(1)(f) of the Law. 

25.      PC Malzard informed us that it was during that telephone conversation that she established that Mr Afshar had not bought Jersey Bowl Limited but rather that his company Garland Leisure had acquired the business and occupied the premises as sub-tenant.  As such he was unconnected with the licence holder.  She informed us that it was apparent in the conversation that Mr Afshar had limited knowledge of the Law, was unaware of how liquor licences were obtained and transferred, and he was advised to seek legal advice.  She spoke to his advocate shortly thereafter who confirmed that Garland Leisure had not bought Jersey Bowl Limited when acquiring the business.  She was told that the lawyer had not been instructed in respect of the liquor licences.  Mr Afshar agrees that PC Malzard said she wanted to talk about the Event, and that he explained the company's structure to her.  He says that he was not in Jersey on the night, and could not assist factually in any evidence regarding the Event.  He is adamant that she did not mention the question of any charges being brought, or the commission of any offences. 

26.      Police records showed that Mr Afshar was contacted on a number of occasions with the request that he attend for interview - on 9^th April, 2014, on 28^th May, 2014, when he was informed that the Solicitor General had requested that he attend for interview, which request was repeated either to him or to his lawyers on 16^th July, 17^th July, 22^nd July and 24^th July.  Whilst Mr Afshar at various times said that he was willing to be interviewed, he also stated that in his view it was a waste of time, and he asked how he could be interviewed in relation to a company that did not exist.  He also said that he was "an employee" of Garland Leisure and finally that he did not feel that he was liable to be interviewed as he was not the licence holder at the time of the incident.  Neither he nor Garland Leisure had ever held the licence and it was a waste of time. 

The evidence

27.      When Mr Afshar gave his evidence, he explained how he had experience in the licensing trade in the UK over very many years.  He currently held some 30 licences himself, and that he was SIA accredited.  His head office was always in touch with the different businesses and there were visits carried out on a regular basis.  He had approved the holding of the Event in the first instance because he had been told it had happened before.  He cancelled the event proposed for July.  He had seen the DVD recording by the Licensing Unit and he was ashamed of what took place on the licensed premises on 22^nd June, 2013.  His was a family entertainment business. 

28.      He told us that he understood the licence belonged to Mr Cheetham and he trusted him.  As he put it, one has to accept what the employees, his soldiers, told him.  They are the ambassadors for the company.  The rules have since changed, and none of his managers have now the right to hold an outside event without authority from the operations director. 

29.      To the extent that this account was not consistent with the purchase agreement, he was naturally cross-examined.  He told us that he did not read the purchase agreement in any great detail.  In his view, a lawyer should tell the client in layman's language what problems, if any, there are.  He did not believe the licence was in Jersey Bowl Limited.  He assumed all was in order.  He did not ask if Garland Leisure needed to register with any Jersey authorities.  He only realised there was a licensing issue in August 2013 when the sub-leases were being transferred from Garland Leisure.  He apologised for what had taken place.  Nonetheless he did not think it was fair to describe the June event as creating an unsafe situation.  He was not aware of the complaints made by the Solicitor General until September 2013.  He cancelled the July event only because his operations director suggested he should. 

30.      When Mr Cheetham gave his evidence, he confirmed that he had been the registered manager for very many years.  During all that time they have had dancing.  There was nothing in the Act of Court dated 30^th September, 1994, which confirmed the provisional entertainment licence, and which was the document he had taken to the States Treasury for renewal of the licence year by year to suggest that there was either a no dancing condition or a restriction on hours.  When it was pointed out that this particular document indicated that the licence was granted to Jersey Bowl Limited and not to him personally, he said that he had not noticed that.  It was also pointed out that there was a reference to "condition (3)" attached to the licence, and that that reference must to him have suggested that there might have been conditions 1 and 2 as well.  He did not accept that he had ever understood that to be the position. 

Discussion

31.      Advocate Hoy suggested to us that there was a misunderstanding from the outset.  As purchaser, Mr Afshar had relied upon Mr Cheetham and Mr Cheetham had made a genuine mistake.  He submitted that it was surprising that the Licensing Unit and/or the Connétable of the Parish of St Peter had not mentioned the various matters to the Assembly at the sitting in December 2013 when the respondent's application had been considered.  In his submission there should be no revocation of the licences for what was a genuine misunderstanding and, in relation to the Event, had been a one-off occurrence. 

32.      By contrast, the Solicitor General contended that the Assembly should re-open its decision to grant the licence because the wrong information was given to it, and in any event there was an ongoing supervisory jurisdiction under the Law.  In his contention, some sanction should be applied for what had happened during the last two years, not least because Garland Leisure had breached nearly every provision in the Law. 

33.      By virtue of Article 18(3) of the Law, the Court is charged not to register a person as a manager of a licence held by a limited liability company unless satisfied that the person is a fit and proper person to have charge of the licensed premises.  Similarly, although there is no such provision in terms in Article 6(9), the practice of the Assembly is quite clear that, in deciding whether or not an application meets the interests of the public in general, the question as to whether the licence holder is a fit and proper person to hold a licence is one of the criteria applied to the decision to grant the licence.  Accordingly we have had to consider the Solicitor General's contention that the history of what we have recounted demonstrates that the respondent is not a fit holder of the licences.  Of course, the respondent was not responsible for the Event, nor was it responsible for the conduct of the licence by Garland Leisure.  To hold the respondent responsible for those actions would require us to look through the corporate structure, and we do not think we can do that.  We will, however, make these comments about the conduct of Garland Leisure and about the internal organisation of the group of which it was a part.  We agree with the Solicitor General that Garland Leisure has broken many penal provisions in the Law.  Every alcoholic drink which it sold over a 23 month period was sold contrary to the provisions of the Law.  It traded in alcoholic liquor without a licence.  It renewed a licence which belonged to somebody else without telling them.  At the Event, it breached the conditions attached to the licence by remaining open outside the permitted hours, by holding a dancing event contrary to one of the conditions, and by exceeding the permitted numbers on the licensed premises.  It broke one or more of the general conditions of all on licences by permitting drunkenness on the licensed premises.  It failed to maintain adequate arrangements by way of precautions against fire, and compromised the safety of persons in the case of fire by having exits blocked or impeded and the fire alarms switched off.  It did not have adequate arrangements for security, for clearing up broken glass and debris or for the removal of patrons from the licensed premises at the end of the Event.  The Assembly considers that the running of the event was extraordinarily unsafe and created a serious risk for patrons attending it.  To this, it appears the only answers from Mr Afshar and Mr Cheetham are that it was a mistake, and, on the whole, someone else's mistake at that, and a misunderstanding. 

34.      In our view, the various breaches by Garland Leisure of the Law, while not attributable to the respondent, do raise questions about the fitness of those in charge of Garland Leisure to hold a licence, and in those circumstances, given the same people are involved, do raise questions about the fitness of the respondent.  We think the difficulty in persuading Mr Afshar of the need to attend at the States of Jersey Police Headquarters for interview demonstrates that he did not at that time have an appreciation of the need to co-operate with the law enforcement authorities of this Island.  The fact that Mr Cheetham was the registered manager of a licence for some 17 years without knowing what the conditions attached to that licence were is also of serious concern.  Some members of the Assembly were very surprised that he considered that he was the licence holder personally, but even if that were to be an understandable mistake, which we doubt, it is fundamental that a licence holder knows the terms on which the licence is to be operated. 

35.      We set out this in the detail we have because there is no doubt at all that this material was relevant to the application made by the respondent for third and seventh category licences in December 2013.  Yet the Assembly was told none of it.  We cannot look behind legal professional privilege and identify on this reference the extent to which the fault lies with the respondent's advocate as opposed to the respondent.  The division of any such responsibility can only be a matter for discussion between the respondent and its then advocate.  What we do say is that advocates presenting an application to the Assembly do have an obligation to ensure that all material which is relevant, and of which they are aware, whether it assists their client or not, is brought to the attention of the Assembly for consideration.  It is no answer to this to say that the Licensing Unit or the Connétable of the Parish ought to have raised the matter with us themselves.  We agree that they should, and in criticising the respondent for its failure to do so, we do not seek to exonerate the Licensing Unit or the Connétable for their failure to tell us what the Assembly should have been told.  Nonetheless, this does not reduce the culpability of the respondent because it was the applicant which had the primary responsibility for ensuring that all relevant material was put before the Assembly. 

36.      The failure of the respondent to put the relevant material before the Assembly on 20^th December, 2013, amounts to a serious breach of its obligations to the Assembly. 

Penalty

37.      Article 9 of the Law provides as follows:-

"(1)     Whenever the Attorney General is of the opinion that any matter relating to a licence should be referred to the Licensing Assembly, the Attorney General 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."

38.      The parties seem to be in agreement that this was a reference to the Assembly under Article 9 and it is obvious that the first question which arises is whether the only options available to the Assembly are the suspension or revocation of the licence, or whether other options are a possibility. 

39.      This Assembly has already found that it has an inherent jurisdiction.  In the reference of 9^th April, 2013, concerning Club (Dragon) Limited [2013] JRC 069, there was an invitation by the Solicitor General for us to make a costs order against the licensee.  It was contended by the licensee that there was no jurisdiction to make such an order as the Assembly was not a court of law, and the different pieces of legislation dealing with costs therefore did not apply.  That contention was rejected in these terms at paragraph 33:-

"For the avoidance of doubt, we reject Advocate Tremoceiro's submission.  The Assembly of the Bailiff, Governor and Jurats, which is the Assembly conferred licensing powers under the Law, is an Assembly which is centuries old.  At one stage it clearly had executive and legislative powers.  We are entirely satisfied that this Assembly has an inherent jurisdiction to make an award of costs."

40.      In the circumstances of that case, the Assembly declined to do so, but there is there an unequivocal statement of the Assembly's inherent jurisdiction. 

41.      If that inherent jurisdiction exists, as we believe it does for the reasons given, then it follows that, just like the Royal Court, the Assembly had an inherent jurisdiction to impose a fine where it was exercising that jurisdiction in relation to matters coming before it.  The question is whether the terms of Article 9 of the Law, which refer only to suspension or revocation of a licence necessarily remove the inherent jurisdiction which the Assembly has. 

42.      In our view they do not.  It is well known that in order to remove a jurisdiction which exists, the legislature must use language which explicitly achieves that objective.  In this case, the language used by the legislature is permissive only.  It indicates that the Assembly can suspend or revoke the licence; and it is unsurprising that such a provision is necessary because the Law confers on the Assembly the jurisdiction to grant licences.  However, it does not seem to us that it necessarily removes from the Assembly the right to impose other penalties. 

43.      The Assembly exercises an inherent jurisdiction to regulate its own procedure as well.  On many occasions - and indeed in this case - it has administered, through the Greffier, an oath to witnesses who give evidence before it.  It has on previous occasions authorised the Royal Court to make procedural orders so as to ensure that a reference under Article 9 has been properly documented and that the Respondent is fully aware of the case which is to be made against that licensee.  This Assembly so regulates itself to ensure that Article 6 of the Human Rights Convention is complied with, and that there is a fair hearing in respect of any such reference.  When references are made, the Assembly sits in public.  The licensee has a right to be heard, and indeed the Assembly is entitled to call on any other person to address it in relation to the matter under consideration. 

44.      In most cases, a breach of the terms of the Law will result in criminal proceedings being brought before a criminal court rather than before the Assembly and the Law makes provision for fines to be imposed in respect of any such offences.  It could be argued that as a consequence of this, Article 9 deliberately provides for a suspensive power and a power of revocation, because that is all that the Assembly is concerned with.  It was for that reason that we invited the Solicitor General and Advocate Hoy to comment on whether any submissions were made that we did not have jurisdiction to impose a fine.  Both the Solicitor General and the Appellant agreed that we did have that jurisdiction.  In the present case, we therefore have had to consider whether a revocation or suspension would deliver appropriate justice as opposed to the imposition of a fine. 

45.      Jersey Bowl is, we are told, a successful business now run by the Respondent.  It employs a large number of staff, all of whom no doubt in these difficult times will depend upon the company for continued employment.  There seems little doubt that the business is, on the whole, well administered.  The Connétable of the Parish spoke to that effect at the Assembly on 20^th December, 2013, and one of the Honorary Police of the Parish had equally glowing things to say about the administration of the business when the Parish Assembly considered the matter.  Even before us, PC Malzard accepted that the premises were generally very well run and there was no difficulty which the Licensing Unit had with them.  Indeed she did not demur when it was said that the States of Jersey Police social functions had been held there in the past, which was clearly a testament to the good reputation which the respondent has. 

46.      Mr Afshar said he was ashamed by the running of the Event, which formed no part of his companies' core business.  He produced a reference from his English solicitors which again spoke highly of the reputation of the group.  We think that there is no doubt that although he did not appropriately co-operate with the police enquiry in the early months of 2014, he now recognises the need to co-operate with the States of Jersey Police Licensing Unit.  We do not doubt that this whole reference has provided a salutary - and indeed much needed - lesson.  In the circumstances, it seems to us that the revocation or suspension of the licences would cause the employees of what is otherwise a well-run business, its patrons and indeed the public at large some damage - in the case of the public because there would be loss of a useful Island facility.  Of course we do not say that there would never be any circumstances where these factors would be outweighed, but they are important factors for us to take into account if there is another way of dealing with the matter.  For the reasons we have given, we think a fine therefore is more appropriate and we impose a fine of £25,000 on the respondent in relation to the matters referred to us.  We have also ordered that the respondent pay the costs of the reference, as agreed, or failing agreement to be taxed on the standard basis. 

47.      We add only this.  In the course of the submissions which were made to us, and indeed in the course of taking the evidence we did, it became apparent that it is difficult with the business which is run at Jersey Bowl to identify the form of alcohol licence which is most suitable for that business.  It is probably the case that the combination of the restaurant and entertainment licences is the right one, but there is perhaps a need to review more precisely the nature of the conditions which are attached to the licences.  We would suggest that the respondent should take some urgent legal advice with a view to making an application to the March sitting of the Assembly so that the conditions which are attached to the licences more appropriately fit the business model which has been adopted. 

Authorities

Licensing (Jersey) Law 1974.

Unlawful Public Entertainments (Jersey) Regulations 2010.

Club (Dragon) Limited [2013] JRC 69.