Entertainment & liquor licensing
News: Evidence is the Name of the Game
(Press Article)- Date: 07/05/2008
- Source: Poppleston Allen
- Author/Solicitor: Lisa Sharkey
A decision in favour of Daniel Thwaites Plc in the High Court on the 6th May 2008 has emphasised the principles laid down by the 2003 Licensing Act and its accompanying Guidance that there should be a light touch bureaucracy applied to applications for licences and restrictions should only be attached to Premises Licences if they are necessary to promote the licensing objectives.
These are arguments which are advanced on many occasions by licensing lawyers on behalf of their clients when over enthusiastic authorities lay down lists of conditions, particularly in respect of public nuisance and public safety which are totally unnecessary but are put down as a blanket set of conditions, "just in case anything goes wrong". Committees get carried away too!
At reform, Thwaites applied to convert and vary the Justices' Licence for the Saughall Hotel, Saughall Road, Wirral. The Police initially objected to the extension of hours being sought and Thwaites agreed to restrict the hours and the Police withdrew their objection. The hours they sought were music and dancing until 11pm and alcohol to midnight, except Fridays and Saturdays where music and dancing would be until midnight and alcohol served to 1am. The premises were also to close 1 hour after the last sale of alcohol.
The application went before the Licensing Authority on the 23rd August 2005 due to objections from the Saughall Massey Conservation Society and other residents.
As part of the evidence Thwaites indicated that the extended hours would not be used regularly but were being applied for to allow flexibility to open later on special occasions. This was an important part of the application.
The hours were granted as applied for subject to a couple of minor changes which were not significant and the imposition particularly of conditions to control noise - outside area to be cleared by 11pm; premises to promote the use of a taxi firm which used a call back system; doors and windows to be kept closed when regulated entertainment was provided and prominent notices to be displayed requiring customers to leave quietly.
The Conservation Society and other residents then appealed the Licensing Authorities decision to the Magistrates' Court.
The Magistrates' Appeal was heard between 3rd-5th April 2006. Thwaites had already been operating under the benefit of the licence granted by the Licensing Authority from the date it came into effect, the 24th November 2005. The appeal by the objectors was granted by the Magistrates' resulting in the hours being reduced, entertainment being permitted to 11pm with alcohol to 11.30pm except Fridays and Saturdays when entertainment was permitted to 11.30pm and alcohol until midnight. The conditions imposed by the Licensing Authority to control noise were not changed.
Thwaites appealed to the High Court, Queens Bench Division, raising the following issues:
1. The decision was not in line with the philosophy of the Licensing Act and imposed restrictions on Thwaites operation which were not necessary to promote the licensing objectives.
2. The decision was based on speculation rather than evidence, that it took into account irrelevant considerations and failed to take into account proper considerations and was a decision to which no properly directed Magistrates' Court could have come to on the evidence.
3. Closing times for premises were not matters which could be regulated under the Act.
4. The Magistrates' failed to give adequate reasons for their decision.
In coming to her decision, the Honourable Mrs Justice Black reviewed the evidence before her, paying particular attention to the Justices' Reasons, which accepted in terms that there had been no reported complaints in regard to public nuisance or disorder and that the extended hours had operated without any incidents. However they attached little or no weight to the statement from the witnesses for the appellant. They did not amplify this in the Reasons.
She found in favour of Thwaites on all points save that relating to closing times.
In that respect she said that "a requirement that premises close at a particular time seems to be a condition just like any other, such as keeping doors and windows closed to prevent noise. I see no reason why a condition of closing up the premises at a particular time should not therefore be imposed where controlling the hours of the licensable activities on the premises… is not sufficient to promote the licensing objectives".
In coming to her conclusions she found that the Magistrates' had failed to take a proper account of the changed approach to licensing introduced by the Act, they should have had a greater reluctance to impose regulation. They should have looked at the real evidence that it was required in the circumstances of the case. They proceeded without proper evidence and gave their own view excessive weight. Their resulting decision limited the hours of operation of the premises without the evidence necessary to do so to promote the licensing objectives.
She went onto say that the information provided by the Magistrates' in response to the Judicial Review made it clear that the Magistrates' had largely ignored the evidence and imposed their own views, and they raised issues that had not been referred to in their reasons.
Well done Daniel Thwaites Plc! This is a decision that as a licensing lawyer I am very happy to carry around with me and refer to on many occasions when dealing with requirements for cut backs and conditions.
For more information, please contact Lisa Sharkey