R (Chief Constable of Nottinghamshire Police) v Nottingham Magistrates Court
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MOSES,MR JUSTICE HICKINBOTTOM |
| Judgment Date | 17 November 2009 |
| Neutral Citation | [2009] EWHC 3182 (Admin) |
| Docket Number | CO/8295/2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 17 November 2009 |
[2009] EWHC 3182 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Moses
Mr Justice Hickinbottom
CO/8295/2009
Mr J Findlay QC (instructed by Nottingham Police Headquarters) appeared on behalf of the Claimant
Mr G Gouriet QC and Mr J Lopez (instructed by Berwin Leighton Paisner EC4R 9HA) appeared on behalf of the Defendant
(As approved)
: The Licensing Act 2003 introduced a new and radical system for conferring alcohol and entertainment licences. From its introduction licensing authorities were responsible for the decision whether to grant or refuse such licences. No longer did Licensing Justices have that power. Licensing authorities were required to grant a licence to permit licensable activities in premises, unless representations were made by statutorily defined interested parties, or a responsible authority such as the police.
Interested parties and responsible authority were made parties and were entitled to make representations. But this application by way of judicial review raises the question of whether those who are parties before the discussion conducted by the licensing authority are entitled to be heard on an appeal. If they are not so entitled, the question also arises whether the magistrate has the power to permit such persons to be heard, even though they are not parties. Apparently different Magistrates' Courts have taken different views.
In the current edition of Paterson's Licensing Acts the editors comment that it would be helpful for an appropriate case to be brought before the higher courts so that the present and continuing uncertainty can finally be resolved (2009 edition, Volume 1, page 514). This is it. Whether it is helpful it is for others to decide.
This application, with the permission of the Single Judge, to move by way of judicial review, concerns a decision of the City Council of Nottingham to grant a new premises licence to Tesco in respect of a new Tesco Express which has now opened at Shakespeare Street, Nottingham. The City Council granted that licence on 19 February 2009 following a hearing attended by representatives of the Chief Constable of Police of Nottingham and Tesco Stores Limited. There was no opposition to the grant of the licence, but there was a dispute between the Chief Constable and Tesco as to the ambit of conditions which should be attached to it.
No one can be unaware of the problems of young people drinking in the city centre of Nottingham. There was understandable concern that yet another retail outlet off-licence should be available to those who wish to drink and misbehave in the streets. Accordingly, the Chief Constable was concerned that there should be a condition imposed on the new store requiring bottles for sale containing alcohol to be marked showing the origin of the particular bottle; secondly, that a refusals book should be kept identifying those to whom employees of Tesco had refused to supply bottles containing alcohol.
The licensing authority agreed that those conditions were appropriate. In so determining they received evidence from Inspector Winter of the police, from Tesco Stores and heard submissions by both parties. There is a full and admirably cogent copy of the decision within the papers with the report of the subcommittee, including the written evidence of Inspector Winter, that again clearly and admirably sets out the reasons why the conditions were sought. Tesco appealed against the imposition of the conditions by notice of appeal dated 26 February 2008.
The police were anxious to uphold the conditions which they had successfully persuaded the subcommittee to impose. They were particularly concerned that restrictions should apply in what the police regarded as a sensitive location within Nottingham, where young people both lived and gathered, and where they might have ready access to alcohol from off-licences such as the Tesco stores in question.
In those circumstances the police had taken the view that if they could not successfully uphold such conditions in this area they might have considerable difficulty in doing elsewhere. I need to emphasise that it is not for this court in any way to pass comment upon the merits of the underlying imposition of the conditions, that will be for the magistrates on appeal. But so important did the police regard this issue that they applied to be joined as a party in the appeal proceedings. That procedural application was heard by District Judge Stobart on 11 June 2009. Leading counsel for the Chief Constable of Police sought permission to appear at the appeal hearing and call witnesses, and the Council fully supported the police both as a matter of principle and in respect of this particular case. District Judge Stobart refused the police application. He gave a judgment and it will be necessary, in the course of my judgment, to give my comments upon the reasons as to why he refused the police application.
Before doing so I should note that the hearing of the appeal is due not before the District Judge, but before the Justices next Monday, 23 November. The decision of this court, whilst not only gratifying the editors of Paterson, is therefore necessary for the purposes of that hearing next Monday. Moreover, we were told that there are other cases which await this decision, particularly in the area in Nottingham where the grant of licences and the imposition of conditions are regarded as important for the general good of those who live and pass through that area.
Two particular issues of principle arise: firstly as to whether the statute either expressly or impliedly confers the right upon a responsible authority, such as the police, to appear and make representations on the appeal; or alternatively, the extent to which the magistrate had power to allow the police to do so.
In order to resolve those issues it is necessary to turn to the statutory scheme introduced by the 2003 Act. Section 1 identifies licensable activities in a way that incorporates within one Act different licensing functions previously exercised either by Licensing Justices or by licensing authorities. Licensing authorities are defined in section 3 in a way that includes Nottingham City Council. The general duties of licensing authorities are identified in section 4. A licensing authority must carry out its functions with a view to promoting those objectives (section 4(1)). The licensing objectives are:
“(a) the prevention of crime and disorder;
(b) public safety;
(c) the prevention of public nuisance; and
(d) the protection of children from harm.”
(see section 4(2))
By section 4(3) the licensing authorities are required to have regard to its statement of licensing policy, which it must publish pursuant to section 5, and to guidance issued by the Secretary of State under section 182. The Secretary of State has issued such guidance.
Section 13 defines interested parties, including, for example, persons living in the vicinity of the premises in question and “responsible authority”, which includes “Chief Officer of Police”, in respect of premises licences defined by section 11; in other words, those licences which authorise premises to be used for one or more licensable activities. Section 16 provides for those who may apply for a premises licence.
Section 18(2) requires an authority to grant a licence subject only to conditions unless relevant representations are made. Relevant representations are those representations made by interested parties or responsible authorities as to the likely effect of the grant of a premises licence (see section 18(6) and (7)). Thus pursuant to section 18 the authority's obligation to grant the licence is removed once relevant representations are made by those who have the right to make such representations specified in section 18. Once relevant representations are made, the authorities are required to hold a hearing to consider them unless all those concerned agree that a hearing is unnecessary.
The licencing authority is then required to have regard to those representations and take such steps identified in section 18(4) as are necessary for the promotion of the licensing objectives identified in section 4. The authority may grant the licence, or grant it subject to any condition, or reject the application among other powers identified in section 18(4).
Section 181 confers the right of appeal, to which I shall turn shortly. Section 182 requires the Secretary of State to issue guidance to licensing authorities on the discharge of their functions.
Under the Licensing Act 2003 (Hearings) Regulations 2005 (“the 2005 Regulations”) functions and procedure are identified. By regulation 2 parties to a hearing are defined and include those to whom the notice of a hearing must be given in accordance with regulation 6(1). Those to whom notice of a hearing must be given in the case of an application for a premises licence are identified through regulation 6(1) in a table in Schedule 2, and include those persons who have made the application and those who have made relevant representations, such as the Chief of Police in the instant case.
By regulation 7 notice of a hearing must be given and the regulations set out in regulation 8 the procedure on receipt of notice of a hearing, including the right of a party to apply for another person to make representations on his behalf in regulation 8(2); regulation 9 gives power to dispense...
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