Hall & Woodhouse Ltd v Poole Borough Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RICHARDS,MR JUSTICE OWEN |
| Judgment Date | 03 April 2009 |
| Neutral Citation | [2009] EWHC 1587 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/9786/2008 |
| Date | 03 April 2009 |
[2009] EWHC 1587 (Admin)
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
MAGISTRATES DIVISION
DISTRICT JUDGE PATTINSON
Royal Courts of Justice
Strand
London, WC2A 2LL
Before: LORD JUSTICE RICHARDS
and
MR JUSTICE OWEN
Case No: CO/9786/2008
Mr P Kolvin QC (instructed by Horsey Lightly Flynn) appeared on behalf of the Appellant
Professor R Light (instructed by the Respondent's Legal and Democratic Services) appeared on behalf of the Respondent
(As pproved by the Court)
1. : This is an appeal by way of case stated from a decision of District Judge Pattinson sitting at the Bournemouth Magistrates Court by which he found the appellant, Hall & Woodhouse Limited, guilty of four offences under section 136(1)(a) of the Licensing Act 2003 (the Act). By section 136(1):
“A person commits an offence if (a) he carries on or attempts to carry on a licensable activity on or from any premises otherwise than under and in accordance with an authorisation, or (b) he knowingly allows a licensable activity to be so carried on.”
2. The appellant owns approximately 250 public houses in the south of England. It manages about one-third of them and lets the remaining two-thirds on tenancy agreements. The case relates to the Stepping Stones Public House in Broadstone, Poole, which is owned by the appellant but let by it to a Mr Stephen Cartlidge under a tenancy agreement dated 27 April 2006. Mr Cartlidge in turn employed a Mr Lance Ferguson to be manager and designated premises supervisor of the public house.
3. The premises are subject to a premises licence applied for by the appellant under the Act and granted on 30 September 2005. The application was made under the transitional provisions of the Act for the conversion of an existing on-licence and public entertainment licence relating to the premises into a new premises licence.
4. The premises licence so granted was subject to a number of conditions which included (1) a prohibition on entertainment taking place on the premises later than 23:00 hours; (2) a provision that the fire door was to remain closed; (3) a requirement that a lobby entrance/exit should not be removed; (4) a requirement that the fire exits to the beer garden should be unobstructed; (5) a requirement that steps should be taken to notify all persons leaving the premises of the need to minimise noise in the locality of the premises and (6) a prohibition on consumption of alcohol in the beer garden after 23:00 hours.
5. The allegations were that on four occasions between 27 January and 22 April 2007 a licensable activity, namely the provision of regulated entertainment or the sale by retail of alcohol, had been carried on at the premises otherwise than under and in accordance with those conditions, in that entertainment took place later than 23:00 hours, or a fire door was held open, or the lobby entrance/exit had been removed, or the fire exit was partially blocked and members of staff were not advising people to leave quietly, or the beer garden was being used for the consumption of alcohol after 23:00 hours.
6. There was no dispute as to the facts or therefore that the licence conditions had been broken. The tenant, Mr Cartlidge, and the designated premises supervisor, Mr Ferguson, had pleaded guilty to offences under section 136(1) in respect of those breaches. The appellant, however, denied any liability. Its defence was that although it owned the freehold of the premises and held the premises licence, it had not itself carried on a licensable activity on the premises so as to come within section 136(1)(a), nor did it have knowledge of the breaches so as to come within section 136(1)(b). The prosecution accepted the point about lack of knowledge and did not pursue at trial a charge under section 136(1)(b). The case proceeded only in relation to section 136(1)(a).
7. The Deputy District Judge was satisfied beyond reasonable doubt that the appellant was carrying on a licensable activity from the premises for the following reasons:
“(1) Section 16 of the Licensing Act specifies a restricted list of persons who may apply for a premises licence. The only basis on which the appellant could apply was as a person who carries on or proposes to carry on a business which involves use of a premises for licensable activities to which the application relates; (2) I am satisfied that use of the term “involves” denotes a broad range of business including that of a landlord receiving rent from premises being used for such purpose as in this case; (3) In making the application for the licence, the appellant must have considered itself to be carrying on a business which involves use of premises for licensable activities; (4) The grant of premises licences and enforcement of any conditions in them are fundamental to the licensing system and enforcement of it. To find otherwise would be to undermine the whole basis of the licensing regime and to negate the effect of the offences in section 136(1).”
8. He pointed out that section 136(1)(a) is an offence of strict liability but that a defence of due diligence is available under section 139(1)(a). The appellant called no evidence and had accordingly failed to satisfy him that it had exercised due diligence. Accordingly, he found the appellant guilty of all four offences. He imposed a fine of £250 for each offence and ordered the appellant to pay the prosecution costs.
9. He has posed two questions for the opinion of this court:
“(1) for the purposes of section 136(1)(a) of the Licensing Act 2003, are the acts of third parties imputed to the premises licence holder as a matter of law? (2) was I right to find in the case that the appellant, as premises licence holder, was carrying on the licensable activities as charged?”
The Legislation
10. The Act regulates “licensable activities” which are defined by section 1 to mean broadly the sale of alcohol, the supply of alcohol in a members' club, the provision of regulated entertainment as defined in schedule 1 and the provision of late-night refreshment as defined in schedule 2. By section 2, a licensable activity may be carried on under and in accordance with a premises licence, a club premises certificate or a temporary events notice. This case is concerned with a premises licence of the sort enjoyed by clubs, restaurants and so forth.
11. Section 16 sets out eight categories of persons who may apply for a premises licence. The relevant one is in section 16(1)(a), namely:
“A person who carries on or proposes to carry on a business which involves the use of the premises for the licensable activities to which the application relates.”
12. That is the provision pursuant to which the appellant might, in the ordinary course, have applied for a premises licence in respect of the Stepping Stones public house, but the position is complicated by the fact that the application in the present case was actually an application for the conversion of existing licences made under transitional provisions into which I do not propose to delve, together with, as I understand it, an application under section 16 for a variation.
13. Where a premises licence is granted, it must include certain mandatory conditions and may include other conditions. For example, where the licence authorises the supply of alcohol, it must include conditions specified in section 90 to the effect that there must be a designated premises supervisor and the supply must be made or authorised by a person who holds a personal licence.
13. The Act contains detailed provisions for review and, if necessary, revocation of a licence that has been granted. It also creates a large number of criminal offences. Section 136 is one such provision and is central to the enforcement of the licensing regime introduced by the Act. Since it is also central to this case, I shall set it out in full:
“136 Unauthorised licensable activities
(1) A person commits an offence if—
(a) he carries on or attempts to carry on a licensable activity on or from any premises otherwise than under and in accordance with an authorisation, or
(b) he knowingly allows a licensable activity to be so carried on.
(2) Where the licensable activity in question is the provision of regulated entertainment, a person does not commit an offence under this section if his only involvement in the provision of the entertainment is that he—
(a) performs in a play,
(b) participates as a sportsman in an indoor sporting event,
(c) boxes or wrestles in a boxing or wrestling entertainment,
(d) performs live music,
(e) plays recorded music,
(f) performs dance, or
(g) does something coming within paragraph 2(1)(h) of Schedule 1 (entertainment similar to music, dance, etc.).
(3) Subsection (2) is to be construed in accordance with Part 3 of Schedule 1.
(4) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding £20,000, or to both.
(5) In this Part “authorisation” means—
(a) a premises licence,
(b) a club premises certificate, or
(c) a temporary event notice in respect of which the conditions of section 98(2) to (4) are satisfied.”
15. Section 139, which provides a defence...
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