Blackpool Council v Howitt
| Jurisdiction | England & Wales |
| Judge | JUDGE DENYER |
| Judgment Date | 02 December 2008 |
| Neutral Citation | [2008] EWHC 3300 (Admin) |
| Docket Number | CO/7226/2008 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 02 December 2008 |
[2008] EWHC 3300 (Admin)
His Honour Judge Denyer
CO/7226/2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Ben Williams (instructed by Blackpool Council) appeared on behalf of the Claimant
Mr Hamish Howitt appeared in person
Miss Samantha Broadfoot (instructed by Treasury Solicitors) appeared on behalf of the Intervenor
This is an appeal by way of case stated from the decision of the Deputy District Judge given on 9th April 2008. On that date she allowed an appeal by the respondent against a decision of the local licensing authority to revoke the respondent's premises licence in respect of Delboy's Sports Bar, Rigby Road in Blackpool.
The matter arose in this way. On 1st July 2007 the Health Act 2006 came into force. Section 8 of that Act is in these terms. By section 8(1):
"It is the duty of any person who controls or is concerned in the management of smoke-free premises to cause a person smoking there to stop smoking."
By subsection (4) of section 8:
"A person who fails to comply with the duty in subsection (1) … commits an offence."
Lastly, although I shall return to this, subsection (7):
"A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding a level on the standard scale specified in regulations made by the Secretary of State."
The respondent to this appeal, Mr Howitt, is an avowed opponent of the smoking ban. He believes it is a gross interference with individual liberty and property rights. It may be that others agree with him. In any event he has allowed people to smoke in his pub. He has been convicted on at least two occasions of contravening section 8, ie failing to stop people from smoking. He made it clear to the Deputy District Judge and indeed to others that he intended to continue with that stance.
Thus it was that the matter came before the licensing authority pursuant to the review provisions of section 51 of the Licensing Act. That in turn brought into play section 4 of that Act. By section 4 of the Licensing Act 2003 under the heading "General duties of licensing authorities", it is provided in section 4(1) that:
"A licensing authority must carry out its functions under this Act ('licensing functions') with a view to promoting the licensing objectives".
By subsection (2) the licensing objectives are set out. I am particularly concerned with section 4(2)(a), namely the licensing objective of "the prevention of crime and disorder." Again, although I shall return to this later, I note that by section 4(3):
"In carrying out its licensing functions, a licensing authority must also have regard to-
(b) any guidance issued by the Secretary of State under section 182."
As I say, the matter had come before the licensing authority by way of review. Section 52 of the Act deals with the determination of a licensing review. That is set out at page 82 of the bundle. By section 52(1):
"This section applies where-
(a) the relevant licensing authority receives an application made in accordance with section 51."
By subsection (2):
"Before determining the application, the authority must hold a hearing to consider it and any relevant representations."
And by subsection (3) - (3) and (4) being the important parts:
"The authority must … take such of the steps mentioned in subsection (4) (if any) as it considers necessary for the promotion of the licensing objectives."
Those steps include in (4)(e) the revocation of the licence. The licensing authority, purportedly applying the section 4 criteria decided to revoke the respondent's licence and it was that decision that was successfully appealed by him to the Deputy District Judge.
Her judgment very much centres on the meaning of the words "the prevention of crime and disorder" in section 4 of the Licensing Act. The appellants says that "crime" and "disorder" are to be regarded disjunctively. The respondent says that the words are to be read conjunctively so that effectively the word "disorder" qualifies the word "crime". It was this latter interpretation that appealed to the Deputy District Judge.
In the stated case, and I will just select certain passages from it, she says as follows. Having found as a fact and indeed by agreement that the respondent did not enforce the smoking ban and the respondent effectively confirming to her that he would continue to flout the smoking ban, she set out (at page 14 of the bundle) the contentions thus:
"It was contended that I should consider the words 'crime' and 'disorder' independently from one another and adopt a strict interpretation of the word 'crime' with its ordinary, everyday meaning in the context of the licensing objectives. It was submitted that in doing so, I should then find that the respondent would continue to commit 'crime' on the premises."
Then she said this:
"I was of the opinion that the term 'crime and disorder' under the Licensing Act 2003 was directed towards the drunken, yobbish, alcohol-related behaviour…"
She continued:
"I did not agree that the word 'crime' should be given the strict interpretation but rather that it formed part of a phrase that covered the kind of behaviour, described above…"
She went on to say:
"… smoking is a Public Health issue, which is not a licensing objective for the purposes of the Act. I was therefore of the opinion that the issue of unlawful smoking was not relevant to the objectives of promoting the prevention of crime and disorder."
She also noted that she would have expected, given this was a crime and disorder objection, some police representation and she was also concerned about the dangers of duplicity and that if she were to find in favour of the appellants it would effectively be punishing the respondent twice because he had already been prosecuted under the Health Act.
The question for me is indeed the one that the learned Deputy District Judge poses as the question for this court at page 15 of the bundle:
"Was the court correct to decide that evidence of unlawful smoking on the licensed premises was not relevant to the licensing objective of promoting the prevention of crime and disorder?"
I will deal with a couple of ancillary points which I have already mentioned arising from her ruling/statement of case. It seems to me that the absence of police representation or objections at the hearing is frankly irrelevant to a consideration of the issue.
So far as the duplicity point is concerned, this seems to me to confuse the issue of culpability of an individual under the Health Act with the duty of a licensing authority to promote the licensing objectives.
As a matter of strict definition it seems to me that an offence contrary to section 8 of the Health Act is a criminal offence. I have already read subsection (7) of section 8, but I will just repeat myself in that respect. By subsection (7):
"A person guilty of an offence under this section is liable on summary conviction to a fine…"
So it is clear that section 8 creates a criminal offence which is punishable by way of fine.
It is equally obvious that of itself and by itself a section 8 offence is not a crime of disorder. The respondent therefore says it is not a relevant matter for the purposes of section 4(2)(a) of the Licensing Act and at this point it is necessary to consider section 4(3) of that Act and the whole question of the Secretary of State's guidance. Again, as I have already said, but I will repeat, by section 4(3) in carrying out its licensing functions a licensing authority must also have regard to any guidance issued by the Secretary of State.
The relevant guidance, which came into force on 28th January 2007, is set out at page 101 and following of the appellant's bundle. I shall refer to one or two parts of the guidance. At page 115, which is paragraph 1.23 of the guidance:
"The Licensing Act is part of a wider Government strategy to tackle crime, disorder and anti-social behaviour and reduce alcohol harm."
So that gives us some idea of the broader purposes behind the current strategy. At paragraph 1.28 and following, set out at page 116, there is a reference to certain specific statutes relevant to that strategy: the Crime and Disorder Act 1998, the Anti-social Behaviour Act 2003 and the Violent Crime Reduction Act 2006. Those are specific examples of what are said to be related legislation. They do not necessarily assist greatly in resolving the issue with which I have to deal. But if one goes to page 187 of the bundle there is there set out paragraph 11.25 of the guidance and that does have some relevance. At paragraph 11.25 we find the following:
"There is certain criminal activity that may arise in connection with licensed premises, which the Secretary of State considers should be treated particularly seriously. These are the use of the licensed premises:
• for the sale and distribution of Class A drugs and the laundering of the proceeds of drugs crime;
• for the sale and distribution of illegal firearms;
• for the evasion of copyright in respect of pirated or unlicensed films and music…
• for the purchase and consumption of alcohol by minors…
• for prostitution or the sale of unlawful pornography;
• by organised groups of paedophiles to groom children;
• as the base for the organisation of criminal activity, particularly by gangs;
• for the organisation of racist activity or the promotion of racist...
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DPP v Davitt
...in the District Court. 33 . The State parties cite one UK and one US authority in support of reading “and” disjunctively; Blackpool Council v. Howitt [2008] EWHC 3300 (Admin); Peacock v. Lubbock Compress Company 252 F.2d 892 (Fifth Cir. 1968) (U.S. Court of Appeals for the Fifth Circuit). ......