Published: 28 April 2016 by Andy Grimsey
There was an important decision in the High Court recently regarding whether a formal prosecution needs to have been brought in the criminal courts in order for the crime prevention licensing objective to be engaged in proceedings before the Licensing Authority.
The immigration authorities carried out a raid on a restaurant known as Zara’s Restaurant & Takeaway operated by a Mr Hanif in East Lindsey. During the raid it was discovered that Mr Hanif was employing illegal workers. The Police subsequently brought a review of Mr Hanif’s premises licence and the Licensing Authority made the decision to revoke it. Mr Hanif appealed that decision to the Magistrates’ Court.
It was argued on behalf of Mr Hanif that, as he had not been prosecuted for employing an illegal worker under s21 of the Immigration, Asylum and Nationality Act 2006, but had been handed a civil penalty under s15 of the same legislation that the crime prevention objective was not engaged. However, at the Magistrates’ Appeal it was also established that Mr Hanif had employed the illegal worker without paperwork showing a right to work in the UK, he had been paying him cash in hand and at less than the minimum wage, he had not kept or maintained PAYE records and whilst tax had been deducted from the worker’s salary Mr Hanif had failed to account to the HMRC for that tax deducted.
The District Judge concluded that as no prosecution had been brought and no crime reported that the crime prevention objective was not engaged, and that the failure to pay the minimum wage had not been the main basis of the Licensing Authority’s decision.
The Council appealed by way of case stated to the High Court and the matter came before Mr Justice Jay. The Council argued that it was not necessary for a crime to have been reported, prosecuted or established in a Court of law in order for the crime prevention objective to be engaged as the licensing objectives are prospective and intended to avoid harm in the future.
The Judge accepted all of the Council’s arguments, concluding that there was clear evidence of the commission of criminal offences both in relation to the non-payment of the minimum wage and also tax evasion. He further concluded that based on the absence of requisite paperwork, a National Insurance number or a tax code the clear inference was that Mr Hanif well knew that he was employing an illegal worker.
Mr Justice Jay held that the Council’s decision to revoke the licence was clearly correct, pointing out that employing an illegal worker involves not only defrauding the Revenue but also the exploitation of vulnerable individuals including, in this case, by not paying them the minimum wage.
Mr Hanif was ordered to pay costs of £19,000 in total.
The licensing regime and the Criminal Courts are not the same. Licensing looks forward and in the main licensing decisions should not be made to punish Licence Holders (although decisions made with a view to deter others can be, as was the case here). The standard of proof is different. As the Statutory Guidance makes clear, Licensing Authorities do not have the power to judge the criminality or otherwise of any issue, which is a matter for the Courts: “The Licensing Authority’s role…is not therefore to establish the guilt or innocence of any individual but to ensure the promotion of the crime prevention objective”.
It would be contrary to the regulatory, prospective and ultimately ‘balancing’ nature of the licensing regime if the Police or other enforcing authorities had to institute formal proceedings in order for decisions to be made at licensing reviews. In my view, good licensing is common sense seen through the lens of the four licensing objectives – the Police do not expect zero crime and disorder at bars or nightclubs, but look at “trends” and incidences, be they up or down. Equally, the licensing objectives themselves are only aspirational – few operators can say that opening a new pub on a high street or extending their hours is actually going to prevent crime or disorder. I would struggle to do that even if I was opening a Benedictine Monastery on any typical high street, if only because my monks would become the victims of crime (and thus appear in Police statistics).
The Hanif case is an important, citable precedent that a Licensing Authority is entitled to take into account a wide range of factors when making decisions at a local level, and that the brute force of a Court Summons or conviction is not required for it to wield its power to revoke a licence.
With thanks to Philip Kolvin QC, who represented the Council in the High Court and provided the case report for this article.
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