News: The Hope & Glory Decision, what has it changed?

  • Date: 01/02/2011
  • Source: Poppleston Allen
  • Author/Solicitor: Nick Walton


Rarely does the Court of Appeal consider licensing issues, however a significant judgment was handed down recently relating to the approach of Magistrates when hearing Appeals against the decision of a Licensing Authority (Licensing Committees).

A routine decision of the Licensing Committee in attaching conditions to address public nuisance issues relating to a premises known as the Endurance quickly engaged not only the Magistrates Court, but also by way of Judicial Review the Court of Appeal.


History

The Endurance public house is situated in a mixed residential and commercial area of Central London. Smokers, necessarily congregate outside the premises and where there are a number of people it follows there will be some noise.

Following complaints from residents, in particular those living opposite the premises a review of the licence was heard and the Licensing Committee determined that the noise constituted a nuisance. Having heard both Environmental Health and the Police propose conditions to resolve the issues of public nuisance the Licensing Committee determined to attach a number of conditions to the premises licence.

The licensee appealed against the decision of the Licensing Committee into the Magistrates Court. Appeals against the decision of the Licensing Committee in the Magistrates Court were always considered to be a hearing de novo - effectively a new hearing which looked at all of the evidence up to the point of the trial.

However, the District Judge at the preliminary hearing determined that he was bound by an earlier judgment (Sagnata Investments Limited v Norwich Corporation [1971] 2QB 614). ('Sagnata') In essence 'Sagnata' is authority for the Magistrates' having to give regard to the Licensing Authority's earlier decision.


The District Judge went further at the preliminary hearing to state that:

• He would note the decision of the Licensing Committee;

• Not lightly reverse that decision;

• Only reverse the decision if he considered it to be wrong;

• Hear the evidence;

• Consider the law, guidance and Westminster licensing policy;

• Would not be concerned with the way in which the Licensing Committee approached the decision or the process by which it was made. The District Judge further stated that the correct Appeal against such issues lies by way of Judicial Review.

The District Judge heard the Appeal over 5 days and considered a significant amount of evidence and exhibits (including a visit to the site). To cut a long story short he determined that (as he had suggested initially) he would only interfere with the decision of the Licensing Sub-Committee if he was satisfied that it was wrong. In the reverse he stated that he considered that the decision was right and dismissed the Appeal.

Eventually, the High Court granted leave to apply for a Judicial Review on the very narrow point of whether the District Judge was right to rule that he should consider the decision of the Licensing Authority as a precursor to the Appeal rather than hearing the evidence de novo and starting afresh free of any previous decision/determination.

Interestingly, however, whilst the Appellant also sought permission to introduce fresh evidence which had not been available to the District Judge during the Appeal it was determined that there was no basis on which the late discovery of that evidence could provide any grounds for a Judicial Review and as a result the Appellant was not allowed to introduce the evidence into the Judicial Review process.


Judgment

The Court of Appeal considered three issues:-

1. How much weight was the District Judge entitled to give to the decision of the Licensing Authority?

2. More particularly, was he right to hold that he should only allow the Appeal if satisfied the decision of the Licensing Committee was wrong.

3. Was the District Judge's ruling compliant with Article 6 of the European Convention of Human Rights. (Right to a fair trial.)

The Court determined to dismiss the Appeal of Hope & Glory. In providing answers to the three issues raised, it stated that:-

1. Generally, 'it is right in all cases that the Magistrates' Court should pay careful attention to the reasons given by the Licensing Authority for arriving at the decision under Appeal, bearing in mind that Parliament has chosen to place responsibility for making such decisions on Local Authorities'. It is then the decision of the individual Magistrates' to determine the weight that should be attached to the decision made by the Licensing Authority when considering all of the evidence presented at Appeal to the Licensing Committee decision.

2. It will be perfectly normal for the Appellant to have the responsibility of persuading the Magistrates that it should reverse the Order under the Appeal. In other words, 'it was for the Appellant to persuade the Magistrates' Court that the Sub-Committee should not have exercised its discretion in the way that it did'.

3. The present form of the Appeal provided by the Guidance 182 and Schedule 5 of the Act satisfied the requirement of Article 6 of the European Convention of Human Rights.


Why is this a significant decision?

This decision has determined that as a starting point the Magistrates' should consider the determination made by the Licensing Committee and its reasons. This rather than the established view that the Magistrates' Court hearing considered all of the evidence fresh without the contribution of the Licensing Committee which should now be given some weight by the Magistrates'.

This may seem at odds with the fact that the Appeal in the Magistrates' Court is a re-hearing and fresh evidence can be introduced. More emphasis may have to be made by Appellants on what has happened since the Local Authority's decision.

Finally, there was also clarification that it is the responsibility of the Appellant in such Appeals to call his evidence first.

For more information please contact Nick Walton.