Fair trial rights in Licensing Proceedings

1 February 2011 by Rosalind English

R on the application of Hope and Glory Public House v City of Westminster Magistrates Court [2011] EWCA Civ 31  Read judgement

It was not unfair in terms of Article 6 to require of a party aggrieved by a licensing decision to bear the responsibility of persuading the court hearing the appeal that the original decision was wrong.

This appeal raises a question about how a magistrates’ court hearing an appeal from a decision of a licensing authority under the Licensing Act 2003 (“the Act”) should approach the decision.

The appellant landlord owned premises licensed for the sale of alcohol and entertainment. In 2008 complaints were made by residents about the level of noise caused by the pub’s customers. At the subsequent hearing for the review of the licence the Council’s Licensing Sub-Committee took the view that the noise did constitute a “serious” public nuisance and imposed conditions on the way the appellant served customers. This view was upheld on appeal both by the magistrate’s court and then by the district judge.

The appellant sought judicial review of this decision on the basis that the district judge’s ruling about how he should approach the decision of the sub-committee was wrong in law. It was submitted that the district judge wrongly placed the burden on the appellant to disprove that the noise caused by customers of the pub was such as to amount to a public nuisance and that the conditions imposed by the licensing authority were necessary and proportionate.

The respondents conceded that this decision of the licensing authority was an administrative decision, which involved a determination of the appellant’s “civil rights” within the meaning of Article 6 – Kingsley v United Kingdom (2002).  But they maintained that there is nothing in domestic or Strasbourg case law to suggest that there is a general principle that it is incompatible with Article 6 for a person aggrieved by an administrative decision to bear the responsibility of establishing his complaint.
As for the compatibility with Article 6 of the limited scope of review in licensing cases, the respondents maintained, and the Court accepted, that some administrative decisions call for particular knowledge on the part of the decision maker, and that it would be “perverse” if Article 6 in such cases required a full fact-finding to a tribunal which lack the degree of expertise of the original decision maker (R (Alconbury Developments Limited) v Secretary of State for the Environment, Trade and the Regions [2001] UKHL 23

The Court of Appeal dismissed the appeal. Taking in to account that the district judge had heard a mass of evidence over four days, as a result of which he reached essentially the same factual conclusions as the licensing authority had reached after five hours, the Court concluded that the form of appeal provided by the Act amply satisfied the requirements of Article 6.

Although there is nothing particularly momentous about this appeal and its outcome it does tease out, quite elegantly, some of the arguments that have become entangled in the divide between judicial and administrative decision making. It is easy to forget, when focussing on the explicit and implied requirements of Article 6, why the original decision has been given to a non-judicial body, and therefore why, as a consequence, that power would be negated by allowing a full judicial appeal. Licensing is a very neat example of this; as Toulson LJ, says, although questions about noise, law and order, economic benefit to the proprietor and the effect on the locality are all in a sense questions of fact,

they are not questions of the “heads or tails” variety. They involve an evaluation of what is to be regarded as reasonably acceptable in the particular location. In any case, deciding what (if any) conditions should be attached to a licence as necessary and proportionate to the promotion of the statutory licensing objectives is essentially a matter of judgment rather than a matter of pure fact.

– and the judgment itself is an expression of the power that has been delegated by the people to an elected body as a whole, to decide what the public interest requires.

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