R (Boyle) v Haverhill Pubwatch
| Jurisdiction | England & Wales |
| Judge | JUDGE MACKIE |
| Judgment Date | 22 February 2010 |
| Neutral Citation | [2009] EWHC 2441 (Admin),[2010] EWHC 670 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/7097/2008 |
| Date | 22 February 2010 |
[2009] EWHC 2441 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
His Honour Judge Mackie QC
Sitting as a Judge of the High Court
CO/7097/2008
Mr Thomas Cross (instructed by Nicholas Wray Solicitors) appeared for the Claimant
Mr Gordon Mussett appeared in person for the Defendant
Ms Charlotte Ventham (instructed by Suffolk Constabulary) appeared for the First Interested Party
Mr Stephen Walsh QC and Ms Rachel Kapila (instructed by Kingsley Napley) appeared for the Second Interested Party
This is an application to challenge by judicial review a decision taken by the Haverhill Pub Watch Scheme to extend by two years a ban imposed preventing the Claimant Mr Boyle from entering any of the pubs taking part in the Scheme. It raises the question of the amenability to judicial review of one of the many Pub Watch schemes operating in different ways throughout the country. Three issues arise:—
(a) Is the entity known as “Haverhill Pub Watch” an unincorporated association which has the capacity to be a Defendant to judicial review proceedings? (“the capacity issue”).
(b) Is Haverhill Pub Watch amenable to judicial review and/or does it exercise “functions of a public nature” within Section 6(3)(b) of the Human Rights Act 1998? (“the reviewability issue”).
(c) Did Haverhill Pub Watch deny the Claimant the right to a fair hearing, fail to take into account relevant considerations, misdirect itself as to its policy, fail to give adequate reasons and/or infringe the rule against “appearance bias”?
Permission to apply for judicial review was refused on the papers by Mr Justice Mitting but granted on renewal by Mr Justice Simon on 26 January 2009.
The Defendant (“Pub Watch”) is represented in person by Mr Gordon Mussettt who was until recently the Chairman of the scheme. Mr Mussettt is also Town Clerk for Haverhill but chaired Pub Watch in his capacity as chair of the Arts Centre. Understandably most of the argument against the application is that put forward by the two represented interested parties. The first interested party (“The Chief Constable”) addresses only the reviewability issue. The second interested party (“Wetherspoon”), which is a well known company operating over seven hundred pubs throughout the country, addresses the capacity and reviewability issues. The application was unfortunately listed for only four hours and Mr Cross, who did not waste words, only finished his opening on behalf of Mr Boyle at the end of the first day.
The Evidence
In addition to two bundles of documents there is a variety of witness statements. The Claimant relied on statements from himself, his solicitor Mr Wray and Mr Lamb, a former licensee of The Black Horse pub in Haverhill. The Chief Constable relied on statements from Ms Townsend, a civilian Community Watch Liaison Officer, from Inspector Andrew Mason and from PCSO Melissa Galyean. Wetherspoon relies on statements from Ms Frost and Ms Gibson formerly Manager and Supervisor of the Drabbet Smock Pub, from Mr Geoghegan, Operations Director of Wetherspoon, and from Mr Stephen Baker the Chairperson of National Pub Watch. Mr Geoghegan's statement contains a helpful summary of the origins and operation of Pub Watch schemes throughout the country. From this material the position appears to be as follows.
The Facts
I start with the facts that are agreed or seriously in dispute. I will when dealing with the witness evidence develop some of these points further as the Claimant contends that in reality the position of Pub Watch differs from the picture presented by the other parties.
The responsible operators of licensed premises in an area have always shared information and discussed matters of common interest particularly questions of safety and compliance with the law. These relationships have in recent years developed and become known as “Pub Watch schemes” similar to neighbourhood watch schemes. One aspect of this is the sharing of information about actual or potential troublemakers and individual or collective decisions to refuse entry to particular individuals. The evidence contains details of other benefits from exchange of information through these schemes, many not relevant to the issues I have to decide. It is clear from the evidence of Mr Geoghegan and of Mr Baker that the organisation and sophistication of Pub Watch schemes varies greatly from area to area. So it is important not to generalise and to concentrate on the particular scheme which is the subject of this application.
There are currently, according to Mr Mussettt, some 22 licensed premises in and around Haverhill which participate in the Pub Watch Scheme. There are 16 pubs, the Arts Centre owned by the Town Council plus sports and ex-servicemen's clubs. Haverhill Pub Watch has a record of a written constitution, to which I refer below but, if this was ever implemented, it is dormant now. Pub Watch has no bank account or finances. There is no fee or subscription for members. Identity of the membership is vague in the sense that correspondence is sent to particular pubs, not to their licensees or owners. Membership of the Scheme is a condition of the licence of just over half the premises in Haverhill. For example there is no such condition for the Drabbet Smock. A typical licensing condition provides “the premises will liaise and co-operate with the police and participate in any pub watch or other equivalent scheme”. While it seems that licensees are happy to accept this sort of condition this is no doubt as a result of prior encouragement.
Licences are granted not by Haverhill Town Council but by St Edmundsbury Borough Council. Attendance at Pub Watch meetings is voluntary and it is a matter of individual choice whether a particular pub enforces a banning decision. Typical attendance at meetings is nine or ten from the pubs and clubs. Meetings are minuted and occur every two or three months. So these threads come together, for example, in a document in February 2008 when Mr Mussettt seeks the Town Council's support for a review by the Borough Council of the Licensing Conditions for The Bull the management of which was apparently refusing to enforce a ban on some individuals.
The Claimant's solicitors obtained a copy of a document described as the “current constitution” as at 13 September 2007. That constitution provides as follows:—
“HAVERHILL PUB WATCH
Membership is all licensed premises in the District of Haverhill plus other licensed premises considered to be within the Haverhill urban complex.
Each of the premises has one vote.
A Chairman shall be elected.
Meetings will be held at agreed intervals to be decided locally.
An agenda will be published and a copy sent to each member at least one week before the meeting.
All members must agree to abide by the decisions made at the meetings. Consistent failure to abide by the decisions may lead to expulsion from the watch.
Where a customer assaults a publican, a member of staff or another customer, or commits damage or has threatened staff or customers, the publican can call for an emergency meeting of the banning sub-committee to discuss a Pub Watch ban on that customer.
The Chairman on receipt of such a request shall initiate the procedures.
If a regular meeting is due within a short period the matter can be listed for that meeting.
In an emergency the Members acting as a sub-committee may impose a ban on a person, which will be notified to the next meeting.
Any officer may call an emergency banning sub-committee meeting after an assault or other incident involving a member, which may result in the banning of a customer.
Membership should not be restricted solely to Pubs and may include any other premises with an involvement with watch related activities eg taxi companies”.
I do not doubt that this document is dormant as that is the evidence of Mr Mussett and there is no sign of anyone else being aware of it. I set it out as the Claimant relies on the fact that it exists.
Role of the Police
The Police encourage and support the setting up and operation of Pub Watches as they do other schemes relating, for example to shops, farms and the neighbourhood. The Constabulary has written Policies and Procedures on Pub Watch, the current edition apparently prepared in December 2005 begins as follows:—
“The fundamental principle of Pub Watch is for it to be owned by its members. Past experience, however, has shown that regular police involvement in an advisory capacity is essential, as without it previous schemes have little to offer their members and in consequence they have become less active … This Policy has been prepared as a reference document to Police Officers to develop and manage a Pub Watch scheme and to enable consistency throughout the Force Area.”
The aim is for Pub Watch to become self administering but for the police to continue to provide support including the arrangement of meetings, provision of proforma letters, informing people of banning decisions, the delivery of letters, the provision of photographs of banned individuals where these are available and so on. The Policies and Procedures envisage a launch meeting for new schemes, not at a police station and for the police sector commander to remain a member of Pub Watch.
For the last four years Ms Townsend has provided support for all types of watch schemes. As regards Pub Watch she attends meetings when she can and...
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