Licensing Applications

News: High Court opens door to punishing Licensees

  • Date: 13/05/2009
  • Author/Solicitor: Andy Grimsey

Practitioners involved in licensing issues will be familiar with the four Licensing Objectives - the prevention of crime & disorder and public nuisance, the protection of children, and public safety. Indeed the "promotion" of the Licensing Objectives suggests a remedial approach to issues at licensed premises - in a nutshell, despite past problems, if a Licensee can propose a realistic and achievable set of measures, conditions, or perhaps new hours to operate, then the role of the Licensing Authority and/or Magistrates' Court on Appeal is not one of punishment for any "past crimes".

This approach appears to have been overturned in a judgment by Mrs Justice Slade in the High Court. The hearing was on 7 November 2008 but judgment was only handed down last week.

Bassetlaw District Council applied for Judicial Review of the judgement of a District Judge sitting at Worksop Magistrates' Court in respect of a Licensing Act Appeal for Select & Save. Briefly, the Licensing Authority had suspended for one month the licence of a premises that had failed two test purchases to two 14 year old girls. The District Judge overturned the decision, applying instead "additional conditions on the licence".

The main points of Slade J's decision are as follows:-

1. The general approach of Licensing Authorities on a Review is to establish the cause or causes of the concerns and to take remedial action which is necessary and proportionate.

2. However, when considering Reviews arising in connection with crime (and underage sales are included) deterrence is an appropriate objective and one contemplated by the Secretary of State in the Guidance.

3. Whilst punishment may strictly not be a valid tool on a Review, in Reviews where there has been activity in connection with crime, deterrence could be.

4. In this case, the District Judge had confined himself simply to considerations of remedying and not deterrence, and had therefore erred in law.

5. The District Judge added six conditions to the licence of which it was contended by the Licensing Authority five were already present but simply not properly implemented. The sixth was the definition of what would constitute acceptable identification (passport, proof of age scheme etc). Slade J held that even if the District Judge's general approach had been correct (which in her judgement was not), it "may well be" that these additional conditions were "perversely minimal to meet the circumstances and gravity of the case". In other words, simply re-emphasising conditions which clearly hadn't been adhered to in the past was not going to prevent further underage sales in the future, and therefore did not promote the Licensing Objectives.

6. The District Judge also erred in failing to give reasons for departing from the Government's Guidance.

Such an approach, if taken to its logical extent, could pose real problems for operators of licensed premises. There is a link in the Government's Guidance between the prevention of crime and the "interests of the wider community" and we could see decisions on Review suspending licences even when realistic and achievable procedures have been put in place by the premises since the problems arose. Such punitive decisions are already made in our experience, and often the operator takes it on the chin, particularly if it's one or two weeks of suspended alcohol sales. However, with the additional back up of the High Court on the basis of "deterrence" it seems inevitable that Licensing Authorities will feel more confident in suspending or revoking licences in the general interests of the wider community.

The judgment does not detail the parties' legal representatives apart from Mr J Quirke for the Licensing Authority.

Of course, all these discussions ignore the various criminal sanctions available to enforcing Authorities for underage sales and indeed other crime-related activities. There is also a danger that the previous pro-active, co-operative approach taken by Authorities and the licensed trade when looking at conditions on licences may be undermined by this decision.

For more information please contact Andy Grimsey.