R (Nicholds and Others) v Security Industry Authority

CourtQueen's Bench Division (Administrative Court)
Docket NumberCase No: CO/9567/2005 CO/9655/2005 CO9661/2005
Judgment Date19 Jul 2006
JurisdictionEngland & Wales
Neutral Citation[2006] EWHC 1792 (Admin)

[2006] EWHC 1792 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

ADMINISTRATIVE COURT

Before

Mr Kenneth Parker QC (sitting as a Deputy High Court Judge)

Case No: CO/9567/2005 CO/9655/2005 CO9661/2005

Between
David Nicholds, Michael Hancock, Christian Thorpe
Claimants
and
Security Industry Authority
Defendant
Secretary of State for the Home Department
Interested Party

Stephen Cragg (instructed by Howells) for the Claimants

Natalie Lieven (instructed by Treasury Solictor) for the Defendants

1

This is an application for judicial review of, in substance, the licensing criteria prepared and published by the Defendant, the Security Industry Authority ("the Authority"), under section 7 of The Private Security Industry Act 2001 ("The Act").

2

The claimants have all worked for many years as door supervisors. They have worked full time in that capacity, although it appears from the evidence that many door supervisors work part-time, perhaps to supplement their earnings from other employment. They have substantial experience in their jobs. From the material with which they have supported their applications for judicial review it appears that each of them is well regarded by employers and others, who believe that they possess the necessary qualities, including professional competence, to work as efficient, honest and reliable door supervisors. They had permission to work as door supervisors under arrangements which I shall describe later in this judgment. The Authority does not seek to challenge this material as such, but contends, for reasons that will become apparent, that it is not relevant to the applications for judicial review.

3

None of the claimants qualifies under the licensing criteria prepared and published by the Authority as a fit and proper person to engage in the occupation of door supervisor. Each has a conviction for a relevant criminal offence that automatically debars him for a substantial period from so qualifying. All have been denied licences to work as door supervisors by the Authority. Their appeals have been dismissed by the Magistrates' Court, which has no choice but to apply the Authority's published licensing criteria.

4

The claimants contend that the published licensing criteria prevent the Authority from deciding in their individual cases whether they are fit and proper persons to be door supervisors. They say that the licensing criteria are, therefore, unlawful both upon a proper reading of the Act, guided by well known principles of administrative law, and by virtue of Article 1 of Protocol 1 of the European Convention on Human Rights ("The Convention"), as incorporated into domestic law by the Human Rights Act 1998 ("The HRA").

Introduction

5

In 1999 The Home Office published a White Paper, "The Government's Proposals for Regulation of the Private Security Industry in England and Wales." In the foreword by the then Secretary of State, The Rt. Hon. Jack Straw, he stated:

"The private security industry is a thriving, diverse industry covering a range of services from manned guarding to alarm systems and from cash-in-transit to wheel clamping. The industry has grown rapidly over recent years as people have taken greater steps to protect themselves and their property….Despite the importance of the activities which the private industry carries out there is no regulation to control those who work in the industry and no standards to which companies have to adhere. We have discovered examples of firms owned by and run by people with serious criminal records. Research has shown that, in some areas, door supervisors and criminal gangs which control them are responsible for drug dealing in clubs. Reputable companies enforce effective standards and self-regulation but less scrupulous companies are able to undermine their best efforts. Voluntary regulation cannot touch this situation and it leaves the police powerless to protect the public. If the private security industry is to take a greater role in our society then the public have a right to be protected from the rogues who exploit the current unenforceable system and to expect certain standards from the companies they choose to provide the services with which they come into contact…."

6

The White Paper recognised that there was already significant self-regulation in the private security industry, and said this specifically in relation to self-regulation of door supervisors:

"1.11 Local registration schemes for door supervisors have been set up in a number of areas to tackle problems where they exist. These are set up in co-operation between local authorities and the police, and applicants for registration usually have to be vetted and successfully complete a relevant training course."

7

The White Paper dealt with door supervisors in the following terms:

"5.8 There are widespread concerns about criminality among door staff. Assaults are common and as The Police Research Group Paper 86 "Clubs, Drugs and Doormen" showed, door staff can be involved either directly or indirectly in drug dealing in clubs. At present door supervisors are dealt with at a local level through registration schemes. In January 1996, a Home Office Circular (HO 60/95) was issued to all local authorities and police forces offering best practice guidance on setting up such schemes for door staff working at night-clubs and other establishments with a license for public music and dancing. Applicants for registration usually have to be vetted and successfully complete a training course, which is likely to include core elements of legal issues relevant to licensing and powers, social skills, first aid, drugs recognition and fire safety. The circular was drawn up in consultation with representatives of The Association of Chief Police Officers, the local authority associations and the entertainment industry. There are over 100 schemes in operation around the country covering approximately 20,000 door supervisors.

5.9

Registration schemes are not mandatory and not all local authorities operate them. The Government considers that all door supervisors should be licensed to prevent infiltration or intimidation by criminal gangs and to weed out those whose criminal background suggests that they are not suitable for this work. There is likely to be a continuing role for local authority registration schemes to ensure that door supervisors are properly trained and have good links with the local police but the details of this will be for the Authority to decide following the introduction of licensing."

8

The White Paper also set out how it envisaged that the proposed industry regulator would address the question of criteria for granting a licence:

"3.15 The precise details of the criteria for grant of a licence will be for the Authority to determine in consultation with interested parties but are likely to include: consideration of the details of the CRC [Criminal Record Certificate]. The Authority will be required to produce and publish clear guidelines on the criteria for granting or refusing a licence. It is likely that certain serious offences will automatically debar an individual from obtaining a licence but generally the Authority will take into account whether any conviction was relevant, the length of time since the offence occurred, whether there was a pattern of offending and whether the applicant's circumstances had changed since the offence was committed." (emphasis added)

9

The present is a context where traditional stereotyping may obscure contemporary conditions and standards. In my view, a leading text book on licensing law and practice well expresses these conditions and standards in the following passages:

"29.03 Variously described in the past as "a thug in a dicky bow" or a "gorilla in a suit" [with reference to "Safety on the Door: an Evaluation of local administered registration schemes for door supervisors," Abigail Sleat, University of West of England], excoriatingly immortalised in popular culture [references omitted], the door supervisor should now be seen as an integral part of the system of holistic management of the night time economy…..

Today's door supervisors are the eyes and ears of the licensee, and as such are expected to become involved in the many different aspects of running premises designed for entertainment purposes. They are expected to properly welcome customers onto the premises, whilst enforcing the venue's entry conditions in a firm but fair manner. Once the customers are on the premises the door staff are expected to ensure that the evening runs according to everyone's expectations, whilst maintaining order and preventing breaches of the criminal law, licensing laws and house rules. If any of those laws or rules are breached they need to act within the guidelines of the law and company policy to resolve the situation. Occasionally, and as a part of the customer service aspects of the job, door supervisors may be required to administer first aid to anyone who becomes ill or injured on the premises, before proper medical help arrives. They are also required to patrol the premises and to look out for fire hazards or suspicious packages, and need to be able to carry out basic emergency procedures if problems occur. They have to be aware of basic health and safety rules, and must help the licensee to ensure that the venue is safe enough to be open to the public. They are basically "policing" the licensed premises for the management" (Philip Kolvin, Licensed Premises: Law and Practice 2004)

10

After the hearing, and at my request, Mr Cragg, who appeared for the claimants, gave me further...

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