R FL Trading Ltd v Royal Borough of Kingston Upon Thames
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Patterson |
| Judgment Date | 18 June 2014 |
| Neutral Citation | [2014] EWHC 2512 (Admin) |
| Date | 18 June 2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/1505/2014 |
[2014] EWHC 2512 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mrs Justice Patterson
CO/1505/2014
Mr M Bromley-Martin (instructed by LT Law) appeared on behalf of the Claimant
Mr Christopher Knight (instructed by the Royal London Borough of Kingston Upon Thames) appeared on behalf of the Defendant
Mr James Rankin (instructed by the Metropolitan Police Service) appeared on behalf of the Interested Party
This is a renewed application for permission to bring judicial review proceedings. The application was refused on the papers by William Davis J on 6th May 2014. It was refused on four bases which I summarise. They are, first, delay. Second, that there was an alternative remedy. Third, that the acting superintendent of police is properly to be regarded as a senior member and can exercise a superintendent's functions and fourthly, that there was no possibility of bias.
Background
On 6th January 2014 the defendant's, Licensing Sub-Committee, considered an application for a summary review of a premises licence held by the claimant under section 11 of the Licencing Act 2003 for premises known as "Essence" on Bucklands Wharf, Thameside in Kingston-upon-Thames. The Sub-Committee resolved to revoke the licence in accordance with section 53C(3)(e) of the 2003 Act due to concerns about crime and disorder and, in particular, an incident on 7th December 2013.
In June 2011 the defendant had made a decision to restrict the hours of the licence by reason of the licensing objective relating to crime and disorder and to remove Mr Lumba from day-to-day control of the premises. At that time Mr Lumba was facing criminal allegations, of which he was entirely acquitted, after a trial at Southwark Crown Court in 2012.
The decision of the defendant in June 2011 was appealed to the Magistrates' Court. It was listed to take place in March 2012. At the hearing the licensing authority were represented by Mr Leo Charalambides of counsel. The appeal, in fact was compromised, so no hearing took place. What was agreed was that there would be some alteration of the licensed hours available to the premises and Mr Lumba would be precluded from day-to-day control.
On 7th December 2013 a serious incident of disorder occurred at the Essence premises. Later that day Police Constable Kevin Hyde sought to commence proceedings for summary review of the premises licence pursuant to section 53A of the Licensing Act 2003. The form was signed by Chief Inspector Taylor, in his capacity as Acting Superintendent. He signed also a certificate, under section 53A(1)(b) of the Licensing Act 2003, attesting that the premises were associated with serious crime and serious disorder.
On 12th December 2013 the defendant resolved to take interim steps under the Act and suspend the licence. A summary review took place then on 6th January 2014 before the Licensing Sub-Committee. At that hearing the same Mr Charalambides acted as independent legal adviser to the Sub-Committee. At the commencement of that hearing, Mr Charalambides disclosed his previous involvement to those acting for the claimants in these judicial review proceedings who took no objection to his involvement at that time.
At the hearing Police Constable Hyde relied upon the June 2011 review that had taken place and on the resolution of that matter in the Magistrates' Court in March 2012. The current claimant made in effect two main submissions. The first was that no certificate from an officer of or above the rank of superintendent was available to initiate the proceedings. The Licensing Sub-Committee dismissed that on the basis that the superintendent could delegate power to issue the certificate. Given the aims and objectives of section 53A of the Licensing Act which were to achieve a quick response to serious crime and serious disorder, delegation was inevitable and necessary.
Secondly, a submission was made about the appearance of bias through the involvement of Mr Charalambides. As a result it was submitted that both Mr Charalambides and the Sub-Committee should recuse themselves from the hearing. That was refused. The chairman made it clear that the members were not being pushed around by their legal adviser, they were there to hold to account the licensee for what was being brought before them by the police, who in themselves were the responsible authority for law and disorder.
The grounds that have been argued before me today are fourfold, reflecting the way in which they were dealt with by William Davis J, albeit that Mr Bromley-Martin, who appears on behalf of the claimant, has taken them in a different order.
He argued, first of all, the point about certification of the relevant police officer. He submits that in relation to that, the wording of the statute is clear and, therefore, the form must be signed by a superintendent in rank of the police or above. Further, the cases of Allardyce and Vince which deal with the position under the Police and Criminal Evidence Act are supportive of the position, particularly when one goes back to the decision of Vince at first instance and the observations there made by Payne J that the form has to be signed by the relevant officer and there is a distinction to be made between somebody who is acting in a capacity as a more senior officer and someone who is temporarily holding that rank. If someone is simply acting up in a position then they do not hold the relevant rank and that argument is perfectly arguable.
Section 53A of the Licensing Act, subsection (1) reads as follows:
"(1) The chief officer of police of a police force for a police area may apply under this section to the relevant licensing authority for a review of the premises licence for any premises wholly or partly in that area if—
(a) the premises are licensed premises in relation to the sale of alcohol by retail; and
(b) a senior member of that force has given a certificate that it is his opinion that the premises are associated with serious crime or serious disorder or both;
and that certificate must accompany the application."
Subsection(4) reads:
"(4) In this section—
'senior member', in relation to a police force, means a police officer who is a member of that force and of or above the rank of superintendent; and
'serious crime' has the same meaning as in the Regulation of Investigatory Powers Act 2000 (c. 23) (see section 81(2) and (3) of that Act)."
In the circumstances in the Royal Borough of Kingston upon Thames at the relevant time Chief Superintendent, Glenn Tunstall, who was the Superintendent Borough Commander for the area at the time was on an annual leave. During that period of leave he delegated his powers to Chief Inspector Gary...
To continue reading
Request your trial