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Court of Appeal in Northern Ireland Decisions
You are here: BAILII >> Databases >> Court of Appeal in Northern Ireland Decisions >> Belfast City Council v McKeever [2001] NICA 8 (01 March 2001)
URL: http://www.bailii.org/nie/cases/NICA/2001/8.html
Cite as: [2001] NICA 8
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Appellant
Respondent
NICHOLSON LJ
1. INTRODUCTION
A. Applications for Street Trading Licences
In September 1998, John McKeever, the respondent, made applications in writing for Street Trading Licences in respect of stalls at four sites in Belfast, pursuant to section 2(1) of the Street Trading (Regulations) Act (Northern Ireland) 1929. Belfast District Council, the appellant, refused to grant any of the licences, exercising the powers conferred on them by section 2(2) of the Act.
Although it was not under any statutory obligation to do so, unless requested, the Council provided particulars in writing of the grounds of refusal. The grounds on which a licence may be refused are set out in section 2(2)(a), (b) and (c) of the Act. The Council refused the licences on grounds (b) and (c) of section 2(2) of the Act.
Section 2(2) reads:
"2(2) The [district council] shall, as soon as reasonably practicable after the receipt of an application under the provisions of this section, grant or renew a licence to the applicant under and for the purposes of this Act:
Provided that the [district council] may refuse to grant or renew a licence, or may at any time revoke or vary a licence granted to any person, if –
(a) on account of misconduct or for any other sufficient reason he is in their opinion unsuitable to hold such licence; or
(b) the space available in the street or streets or area to which the application relates, or which is or are prescribed by the licence, is at the date of such application, or becomes at any time after the grant of such licence, insufficient for the selling or exposing or offering for sale by the applicant or licensee of any articles or things under the authority of licence under this Act, or of the particular articles or things referred to in the application or licence, without causing undue interference with or inconvenience to the traffic in such street or streets or area; or
(c) the street or streets to which the application relates is or are not a street or streets ordinarily prescribed by the [district council] in licences granted by them pursuant to this Act;
but the [district council] shall not refuse to grant or renew a licence or revoke a licence on the ground only that the applicant for or holder of the licence does not reside in their district."
B. Appeals from the Decisions to Refuse Applications for Street Trading Licences
The respondent exercised his right of appeal against the appellant's refusals under section 5(2) of the Act. Mr C H McKibbin, a Resident Magistrate, heard the appeals on 15 June and 24 September 1999. At the hearing in June he ruled that grounds 1 to 3 of the Notices of Appeal of the respondent were not valid grounds of appeal. On the hearing in September 1999 he ruled that the hearing of the appeal was de novo and that he was entitled to consider all of the statutory grounds of refusal set out at section 2(2) of the Act. Although the Council had not refused the application for licences on the ground of suitability under section 2 (2) (a) of the Act, evidence emerged during the respondent's evidence-in-chief that he had been trading without a street trader's licence. On instructions from the solicitor for the Council, Mr Beattie, who was counsel for the appellant at the hearing, submitted to the magistrate at the close of the respondent's case that the appeals should be dismissed because Mr McKeever was unsuited on that account to hold a licence. The magistrate accepted that submission and dismissed the appeals on the ground that the respondent was an unsuitable person to hold a licence in Belfast District.
C. The Judicial Review
An application for leave to apply for judicial review of the decision of the Resident Magistrate was made on 17 December 1999. Leave was given on 1 February 2000. McCollum LJ heard the substantive application on 11 and 18 May 2000 and delivered a reserved judgment on 26 July 2000. He held that the magistrate was wrong to have treated the appeals as a de novo hearing of the applications for licences. He concluded that, since under section 5(1) of the Act the local authority must provide particulars of the grounds for refusal, the appeal should be conducted within certain parameters. He considered that section 5(1) and section 5(3) would be unnecessary if all grounds were open either to the Council or to the applicant for a licence on appeal.
He considered that it was important to bear in mind that this was not an appeal from one court to another and that only in the event that a local authority found an applicant unsuitable did the matter arise on appeal. In his view the Magistrates' Court, on appeal by the applicant under the Act, was restricted to matters arising from the grounds of refusal and the grounds of appeal.
He referred to the wording of section 5(2) and stated that no-one was "aggrieved" by the Council's implicit decision that the applicant was suitable to hold a licence. Accordingly, he held that the Magistrate did not have jurisdiction to act as though there had been a cross-appeal by the Council on the issue of suitability of the applicant. He stated at p15 of his judgment that the respondent "was clearly not alert to the fact that his suitability was in issue …".
D. The Appeal
Belfast District Council appealed to this court. The relevant grounds of appeal are set out at (1)(a) to (g). They relate to the question whether on appeal by an applicant to the resident magistrate all statutory grounds of objection are open to the Council.
2. THE ISSUES
I do not consider that it is necessary to comment on the applications for Street Trading Licences to the Belfast District Council or to the appeals to the Resident Magistrate, except in the context of the judgment of McCollum LJ and the arguments presented to this court on appeal from his decision.
The learned judge was of the view that, where there is a refusal of a licence, the local authority must provide particulars of the grounds for the refusal under section 5(1) of the Act. In fact, that obligation only arises if the Council is required to do so by the applicant. In the present case the local authority voluntarily supplied particulars. It expressed no view as to the suitability of the applicant.
I respectfully disagree with his opinion that the grounds open to the local authority on appeal are restricted by reason of the fact that the statute requires grounds of appeal to be particularised. As I have already indicated the grounds of refusal do not have to be particularised, unless requested, and I do not accept with all respect that the giving of grounds of refusal, other than in respect of suitability, implicitly indicates that the District Council regarded the applicant as suitable.
Nor do I consider that "it is important to bear in mind that this is not an appeal from one court to another" or that "the applicant is entitled to have a local authority consider and determine his suitability to hold a licence" or that "only in the event that the local authority consider and determine his suitability to hold a licence and find him unsuitable the matter arises on appeal". Even if the local authority had expressly found him suitable, information that they received after their decision would entitle them to raise the issue of unsuitability, provided that they gave appropriate notice and information to the applicant.
Thus, I respectfully disagree with the learned judge in his reasoning that if some ground of unsuitability arises between the determination by the local authority and the hearing of the appeal, the solution is that the local authority should consider revocation or variation of the licence on the ground of unsuitability.
McCollum LJ relied on the wording of section 5(2), referring to the words, "such refusal" which appear in that provision, and expressed the view that as there was no one aggrieved by a refusal on the grounds of unsuitability, the District Council could not raise the issue on appeal. He held that suitability was implicit in the decision of the Council and that it would not be consonant with fundamental principles of justice that the Council on appeal could raise unsuitability for the first time.
In this context, McCollum LJ referred to the penalty determined by Parliament for trading without a licence as a maximum of £5. His attention was not drawn, it is apparent, to the relevant statutory amendments affecting the maximum penalty which is £1,000 at present.
3. THE APPEAL
Mr Larkin and Mr Lenny appeared for the respondent and Mr Smith QC and Mr Beattie appeared for the appellants.
Mr Smith took us through the relevant legislation and to the decision of this court in Re Ava Leisure's Application [1999] NI 203, pointing out that it had been opened to McCollum LJ but was not referred to in his judgment. It may be that the decision on the fundamental issue should be looked at afresh, but on the issue which concerns this court I wish to re-affirm the statement of Carswell LCJ cited by Mr Smith and made in respect of the Betting, Gaming, Lotteries and Amusements (Northern Ireland) Order 1985 that
"… as Article 119(4) of the 1985 Order provides simply for an appeal to the County Court … we consider that in these circumstances … it takes the form of a rehearing in which the County Court should hear evidence de novo … The court is entitled to take into account all grounds which may be advanced … the parties are not confined to the evidence or arguments which were brought before the Council …".
I agree with the submission that there is no logical distinction to be drawn between section 5(1) of the Act and Article 119(4) of the 1985 Order.
I have found assistance from the decision of the High Court of Australia in Builders' Licensing Board v Sparway Constructions (Syd) Pty, Ltd (1976) 135 CLR 616, not least from the dissenting judgment of Kirby J to which I was referred by Counsel for the respondent. I cite the passage from the judgment of Mason J at pp 621, 622:
"Where a right of appeal is given to a court from a decision of an administrative authority a provision that the appeal is to be by way of a re-hearing generally means that the court will undertake a hearing de novo, although there is no absolute rule to this effect … The nature of the proceedings before the administrative authority may be of such a character as to lead to the conclusion that it was not intended that the court was to be confined to the materials before the authority. There may be no provision for a hearing at first instance or for a record to be made of what took place there. The authority may not be bound to apply the rules of evidence or the issues which arise may be non-justiciable. Again the authority may not be required to furnish reasons for its decisions. In all these cases there may be ground for saying that an appeal calls for an exercise of original jurisdiction or for a hearing de novo."
The Act which we are considering makes no express provision for an appeal by way of re-hearing but there is nothing that I can find which confines the extent of the appeal. No authority was cited by the respondent which tends to suggest that such an appeal should be restricted.
I conclude that the nature of the proceedings before the administrative authority (in this case, the City Council), did not - and was not intended to - confine the court on appeal to the materials before the authority.
There is no provision for a record to be made of what takes place before the Council, although minutes are kept. It is not bound to apply the rules of evidence. It is not required to furnish reasons for its decision, unless a request is made within seven days of its decision. These are grounds for holding that an appeal calls for a hearing de novo.
Moreover, in my view the attempt by counsel for the respondent to distinguish the Ava Leisure case failed. The first ten paragraphs of the skeleton argument of the appellant set out elegantly and succinctly the arguments confirming the view which my colleagues have persuaded me to accept that the appellant was entitled to rely on the unsuitability of the applicant on the appeal:
"1. The statutory ground in question (unsuitability of the Applicant to hold a street trading licence) is set out in Section 2(2)(a) of the Street Trading (Regulation) Act (NI) 1929 (`the 1929 Act'). Evidence relating to this ground emerged during the examination-in-chief of the Respondent before the Resident Magistrate and was pursued by counsel for the Appellant in cross-examination and relied on by the Appellant as evidence of the Respondent's unsuitability.
2. The decision of HM Court of Appeal in Northern Ireland in Re Ava Leisure's Application [1999] NI 203 was opened to the learned judge at first instance but is not referred to in his judgment. In that case Carswell LCJ, delivering the judgment of the court, said (at p211g) that as Article 119(4) of the Betting, Gaming, Lotteries and Amusements (NI) Order 1985 (`the 1985 Order')
`provides simply for an appeal to the County Court … we consider that in these circumstances … it takes the form of a rehearing in which the County Court should hear evidence de novo … The court is entitled to take into account all grounds which may be advanced … the parties are not confined to the evidence or arguments which were brought before the Council …'.
3. The unsuitability of the Applicant is clearly a `ground' for the refusal under both pieces of legislation (see Section 5(1) of the 1929 Act and Article 111(4) of the 1985 Order). Therefore if (as was decided in the Ava Leisure case) the County Court is entitled to take into account `all grounds' (ie including the unsuitability of the Applicant) under the 1985 Order, as a simple matter of comparative construction the Resident Magistrate must be entitled to take into account all grounds under the 1929 Act.
4. The Learned Judge attached significance to Section 5(1) of the 1929 Act (pp11/12 of the judgment). There is no difference in substance between this provision and Article 119(2) and (3) of the 1985 Order. Article 119(2) requires that notice of intention to refuse `shall state the grounds on which the district council intends to refuse …'. The logic of the Learned Judge's reasoning, applied to Article 19 of the 1985 Order, ,would be that both the Council under Article 119(2) and the County Court under Article 119(4) would be limited to the grounds notified. But this is clearly at variance with the decision of the Court of Appeal in the Ava Leisure case.
5. Section 5(1) of the 1929 Act does not `require grounds of refusal … to be particularised' (p11 of the judgment) but only requires the particulars of refusal to be delivered `if required by the Applicant …'. Strictly speaking an aggrieved applicant can appeal without seeking delivery of the grounds of refusal. Thus, the legislature has not attached fundamental significance to the provision of reasons. Furthermore, in drawing attention to the requirement that the intended Appellant must provide grounds of appeal under Section 5(3)(a) the Learned Judge does not compare like with like.
6. The Resident Magistrate's striking out of certain grounds of appeal on the basis of vagueness cannot be utilised as an aid to construction of the relevant provisions of the 1929 Act (p12 of the judgment).
7. The proposition that an applicant is entitled to have his suitability considered by the district council (p12 of the judgment) would apply equally to all other grounds raised by the council on appeal. Yet the same proposition in the context of applications for amusement permits was raised in the Ava Leisure case and implicitly rejected (see pp 211, 212).
8. A district council's power to revoke or vary a licence under Section 2(2)(a) of the 1929 Act does not dispose of the anomaly recognised by the Learned Judge as inherent in his decision (p12 of the judgment) that `if some grounds of unsuitability should manifest itself (sic) between the determination of the Council and the hearing before the Resident Magistrate that ground should not be taken into account by the Resident Magistrate'. In the first place this potential anomaly was recognised by the Court of Appeal in the Ava Leisure case and eliminated by construing the 1985 Order as permitting a district council to raise new grounds before the County Court (see p211h). The point has no greater force in the instant case. Secondly, the Learned Judge's dicta on this point are not relevant to the present case as he expressly refers to information coming to the notice of the district council `during the currency of a licence'. When applied to information coming to the notice of a council between its decision and the appeal to the Magistrates' Court the `anomaly' becomes so extraordinary as to be impossible to attribute to the legislature – thus, the Council refuses the licence on other grounds, subsequently evidence as to unsuitability comes to its notice, the appeal is heard during which no reference can be made to that evidence, a licence is granted, the council immediately takes steps to revoke it.
9. At p13 of the judgment the learned judge states that `no one was aggrieved by the Council's implied decision that the Applicant was suitable to hold a licence so no one had a right to appeal'. But the wording of Section 5(2) of the 1929 Act does not support this proposition. The subsection does not refer to a person aggrieved by the decision but aggrieved by the refusal. There is no material, textual or otherwise, from which it may be extrapolated that an appeal does not throw open the whole question of an applicant's entitlement to a licence. To hold otherwise would involve a detailed examination of a council's decision to ascertain what it did or did not impliedly decide. Nothing in the 1929 Act justifies such an approach and there is no authority, direct or comparable, to support it.
10. Although the Learned Judge does not identify the `fundamental principles of justice' (quaere, applicable to statutory interpretation) referred to at p13 of the judgment it would not appear that the Resident Magistrate would have jurisdiction to refuse or revoke a licence on appeal against a variation. The only issue before the Resident Magistrate would be whether or not to uphold the variation (or, perhaps, to substitute a variation of his own). Therefore, although suitability is expressly relevant to this issue (see Section 2(2)(a) of the 1929 Act) it would seem that the Appellant's licence, as such, would not be in jeopardy on an appeal relating to a variation of that licence."
None of the arguments advanced on behalf of the respondent either in the skeleton argument or in oral argument impair the arguments of the appellants.
The appellants' counsel then dealt with the issue of disproportionality, mentioned by the learned judge. McCollum LJ was led to believe that the maximum fine was £5 whereas Schedule 3 of the Fines and Penalties (Northern Ireland) Order 1984, Schedule 2 of the Criminal Penalties etc (Increase) Order (Northern Ireland) 1984 and Article 3 of the Criminal Justice (Northern Ireland) Order 1994 create a labyrinth out of which emerges the fact that the maximum fine is now £1,000 although the daily penalty for continuing to trade remains at £2. I agree with the submission that the power to refuse a licence on the ground of unsuitability is designed to control street trading and a refusal on that ground is not disproportionate to the fine. Again the arguments on behalf of the respondent do not meet this point.
The appellant's arguments about "the undesirable consequences" to which I have referred and the respondent's arguments about "procedural unfairness" can be treated together. McCollum LJ referred, firstly, to the cross-examination by Mr Beattie of the respondent about his suitability "without having been instructed to do so". We were informed that the solicitor for the Council was present at the hearing and that the judge was wrong in drawing the inference that Mr Beattie acted without instructions although I can understand why the judge assumed it. In view of the statement from the Bar I accept without reservation that Mr Beattie did not act without instructions from his solicitor.
The learned judge also stated that the applicant did not have a decision by the members of the Council on his suitability as a street vendor. But this was a point that was always at least potentially at issue. As I have stated I am persuaded by my colleagues that the respondent should have been prepared to deal with it, therefore; that the City Council was entitled to take the point if, - as here - it unexpectedly arose; that a responsible licensing authority, on learning for the first time in the course of acase that an applicant for a licence was wholly unsuitable, should not allow the point to go by default; and that a solicitor is not obliged in those circumstances to apply to adjourn the case so as to go back to the Council to obtain authority to take the point. I had had reservations on these matters, I feely admit.
The third consequence to which the learned judge took objection was that the respondent was cross-examined in such a way as to cause him to admit criminal offences and the court did not warn him that he need not answer if the answer might clearly tend to incriminate him.
We were told that the respondent's evidence-in-chief raised questions as to his unsuitability and the cross-examination expanded on this issue. The applicant had counsel acting for him and he did not object to the form of cross-examination. The respondent had an opportunity to persuade the Magistrate that he was suitable and we were told that counsel for the respondent made submissions to the Magistrate in answer to Mr Beattie's submissions that the respondent was unsuitable. In any event, the hearing before the magistrate comprehended all issues and was not confined by the reasons for refusal. The question of suitability is one of the essential proofs in an application for a licence. It is a matter on which any appellant against a refusal must be prepared to deal on the hearing before the magistrates' court. Moreover, as the respondent volunteered the prejudicial evidence, it seems to me that no objection to his being cross-examined on suitability could be taken. As Mr Smith pointed out, there is no rule of law that a judge must warn a witness of his right to refuse to answer a question. If the evidence is given the court is entitled to use it in the case in which it is given, unless the opposing party disclaims the use of it.
The respondent claimed in his affidavit sworn for the purposes of the judicial review that if he had been given notice of reliance on the ground of unsuitability he could have marshalled evidence to show that he was of good character and was so considered by other local authorities for street trading purposes. However this was always a potential issue in the case and, as I say, my colleagues have persuaded me that Mr McKeever ought to have been prepared to deal with it on the hearing of the appeal before the magistrate.
In an affidavit of 21 February 2000, Mr McKibbin deposed that the respondent gave evidence in the course of examination-in-chief and cross-examination that:
"(a) Lisburn Borough Council had refused him a street trader's licence because of his history of previous convictions for offences of trading illegally without a licence.
(b) He had traded illegally without a licence in various parts of the borough council districts of Belfast and Lisburn for some years.
(c) At the time of the hearing, he was continuing to trade illegally without a licence at certain locations in Belfast.
(d) He employed children under the age of 18 years to carry out his illegal street trading activities.
(e) He was at all times aware of the general policy of the Council not to prosecute minors involved in illegal street trading.
(f) It was his belief that if he employed minors, rather than adults, to carry out his illegal street trading activities he would be less likely to be prosecuted in consequence.
(g) Certain of his employees had been convicted as a result of carrying out his unlawful street trading activities.
(h) He had paid the fines of those of his employees who had been thus convicted."
It was accepted on behalf of the Council that the Magistrate was in error in stating that the respondent had given evidence that Lisburn Borough Council had refused him a street trader's licence because of his history of previous convictions for offences of trading illegally without a licence. In fact the respondent had been granted street traders' licences in Lisburn. He was also in error in stating that the respondent gave evidence that he had traded illegally without a licence in various parts of Lisburn Borough Council. It was also accepted that it was not the policy of the Council not to prosecute minors involved in illegal street trading. Reliance was placed on the statements of the Magistrate at paragraph 13 of his affidavit, in which he set out his reasons for his decision.
"13. There was abundant, undisputed evidence before me that the Applicant was wholly unsuitable to hold a street trading licence. I was of the opinion that he had consciously and repeatedly flouted the law. Further, he had conducted his activities in such a manner as to facilitate and encourage flagrant breaches of the legislation by others (his employees, some of whom were minors). In addition, he had broken the law for profit. I was particularly struck by his continued breaches of the law at the time of applying to the Council for licences and at the time of the hearing before me. In short, he was seeking to obtain benefits of the 1929 Act while simultaneously violating the legislation in a flagrant, systematic and extensive manner, for personal profit."
Notwithstanding the admitted errors of the magistrate, it is clear that there was ample material on which to conclude that the applicant was unsuitable to hold a licence. The findings that were erroneous were incidental to his overall conclusion which was principally based on the admission of the respondent that he was in flagrant breach of the legislation. I do not consider, therefore, that those erroneous findings vitiate his decision.
I respectfully agree with the decision of McCollum LJ in holding that the Resident Magistrate did not err in striking out grounds one to three of the respondent's notice of appeal and that the respondent was out of time in seeking judicial review of the decision to do so.
I have concluded that the Resident Magistrate was correct to conduct a de novo hearing and I am persuaded that the Council was entitled to raise the issue of the respondent's suitability. I am further of the view that the decision of the magistrate that the applicant was unsuitable was inevitable, in light of the respondent's evidence. I would therefore allow the appeal and restore the decision of the magistrate.
Mr McKeever is not barred from making a fresh application.
IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND
Appellant
Respondent