Akin v Stratford Magistrates Court
| Jurisdiction | England & Wales |
| Judge | Lord Justice Beatson,Mr Justice Simon |
| Judgment Date | 28 November 2014 |
| Neutral Citation | [2014] EWHC 4633 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/486/2014 |
[2014] EWHC 4633 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Beatson
Mr Justice Simon
CO/486/2014
Mr S Whale (instructed by Jung & Co) appeared on behalf of the Appellant
The Defendant did not attend and was not represented
Miss S Lefevre (instructed by the London Borough of Hackney) appeared for the Interested Party
This application for judicial review is brought by the claimant, Yasar Akin, trading as Efes Snooker Club on the Stoke Newington Road. He challenges the decision of District Judge (Magistrates' Courts) Radway dated 7 August 2013, the District Judge dismissed an appeal by Mr Akin on procedural grounds against the revocation on 5 February 2013 by Hackney London Borough Council's licensing sub-committee of his premises licence.
The matter had come before the licensing sub-committee as a result of a notice dated 28 November 2012, by an officer of the Metropolitan Police, pursuant to Section 51 of the Licensing Act 2003 ("the 2003 Act") seeking a review of the premises licence.
Mr Akin raised two procedural grounds in his appeal to the Stratford magistrates. The first, that there were two (rather than three) councillors present at the meeting of the licensing sub-committee has not been pursued in this application, after its dismissal by the District Judge. The second concerned regulation 39 of the Licensing Act 2003 Premises Licences, and Club Premises Certificate's Regulations 2005, statutory instrument 2005 number 42, which I will refer to as the "2005 regulations".
This provided that:
"39.[…] all notices referred to in regulation 38 [which I interpose is the notice requiring the advertisement of a review application such as this] shall state —
"(a) the address of the premises about which an application for a review has been made.
"(b) the dates between which interested parties and responsible authorities may make representations to the relevant licensing authority.
"(c) the grounds of the application for review.
"(d) the postal address and, where relevant, the worldwide web address where the register of the relevant licensing authority is kept and where and when the grounds for the review may be inspected;
"And
"(e) that it is an offence knowingly or recklessly to make a false statement in connection with an application and the maximum fine for which a person is liable on summary conviction for the offence.
This case is concerned with (c), the grounds of the application for review. It was submitted on behalf of Mr Akin that the licensing authority's notice advertising that there was to be a review was invalid because it did not contain the grounds of the application and thus did not comply with the requirements of regulation 39.
The District Judge rejected that submission and held that the notice was valid although he also decided that it did not state the grounds. He did so by applying the decision of the Court of Appeal in R v Secretary of State for the Home Departmentex parte Jeyeanthan [2000] 1 WLR 345.
In that case, which is the basis of the modern approach in public law to the question of non-compliance with the procedural requirements in statutory and subordinate legislation, Lord Woolf stated at 362:
" I suggest that the right approach is to regard the question of whether a requirement is directory or mandatory as only at most a first step. In the majority of cases there are other questions which have to be asked which are more likely to be of greater assistance than the application of the mandatory/directory test: The questions which are likely to arise are as follows:
(a) Is the statutory requirement fulfilled if there has been substantial compliance with the requirement and, if so, has there been substantial compliance in the case in issue even though there has not been strict compliance? (The substantial compliance question.)
(b) Is the non-compliance capable of being waived, and if so, has it, or can it and should it be waived in this particular case? (The discretionary question.) I treat the grant of an extension of time for compliance as a waiver.
(c) If it is not capable of being waived or is not waived then what is the consequence of the non-compliance? (The consequences question.)
Which questions arise will depend upon the facts of the case and the nature of the particular requirement. The advantage of focusing on these questions is that they should avoid the unjust and unintended consequences which can flow from an approach solely dependant on dividing requirements into mandatory ones, which oust jurisdiction, or directory, which do not. If the result of non-compliance goes to jurisdiction it will be said jurisdiction cannot be conferred where it does not otherwise exist by consent or waiver."
That case concerned immigration. Lord Woolf also said that the issue before the court in that case had implications for the failure to observe procedural requirements outside the field of immigration and made further comments about the distinction between a mandatory requirement and a directory one. Lord Woolf said:
" If [the requirement] is categorised as directory it is usually assumed it can be safely ignored. If it is categorised as mandatory then it is usually assumed the defect cannot be remedied and has the effect of rendering subsequent events dependent on the requirement a nullity or void or as being made without jurisdiction and of no effect."
He also stated that the position was more complex than he had put it in that statement and that the mandatory directory approach:
"Distracts attention from the important question of what the legislator should be judged to have intended should be the consequence of the non-compliance."
He stated that that had to be assessed:
"On a consideration of the language of the legislation against the factual circumstances of the non-compliance."
In a majority of cases he considered that it provides limited, if any, assistance to enquire whether a requirement is mandatory or directory. That, then, is the Jeyeanthan approach.
The first ground of challenge is that, for reasons which I will summarise below, the Jeyeanthan approach is not applicable to the licensing context because the 2003 Act and the regulations made under it constitute a statutory code for dealing with the effects of, for the requirements and the consequences of non-compliance with those requirements.
The second ground of challenge is that, if the Jeyeanthan approach is applicable, in the circumstances of this case it was misapplied. That, it was argued, is because one of the requirements (indeed the first requirement) is substantial compliance and it could not be said in this case that there was any compliance with regulation 39(c), let alone substantial compliance.
These proceedings were lodged on 3 February 2014. Green J granted permission on 22 May, but stayed this case pending the application of an outcome of an appeal to the Court of Appeal, in R (D&D Bar Services Limited) v Romford Magistrates Court [2014] EWHC 344 (Admin).
The appeal in that case did not proceed so this case came forward. I shall deal with the decision of the Deputy High Court Judge in that case later in this judgment.
The factual background
The police applied for a review of Mr Akin's premises licence on 28 November 2012. The application for review stated that it related to three licensing objectives: the prevention of crime and disorder, public safety and the prevention of public nuisance. The application also set out in a box the grounds, ie the factual bases relied on for the submission that the licensing objectives were being contravened. The District Judge in his judgment summarised these as gang links to the premises; associated violent crime; weapons; acquisitive crime; habitual breaches of the premises licence conditions, and a management unable or unwilling to get to grips with the problems and sort them out. Essentially, those are the seven ways in which Mr Whale submitted those grounds this morning.
The licensing authority was obliged by regulation 39 to advertise the review by a notice. It used the standard form for this purpose. But in this case, the relevant box of the notice contains not the grounds of review in the application, or a summary of them (because the full grounds would probably not have fitted in them) but a recital of the three licensing objectives to which I have referred.
When the application came before the meeting of the licensing sub-committee on 5 February 2013, those representing Mr Akin applied for the dismissal of the application on the two grounds that were subsequently appealed: the deficiency of the notice and the advert, and because there were only two and not three councillors present. Both submissions were rejected. After consideration of the matter the sub-committee decided to revoke the premises licence. Mr Akin appealed to the Magistrates' Court.
Before turning to the way that the District Judge dealt with the deficiency of notice ground, and the criticism of it by Mr Whale, I interpose that after the District Judge dismissed the procedural grounds of appeal the appeal on the merits proceeded. On 12 December 2013, Deputy District Judge Miller set aside a decision to revoke the licence and substituted a premises licence on terms as to the permitted hours. Mr Whale informed me Mr Akin considers the terms make it an uneconomic proposition for him to run the business.
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