R v Barnsley Licensing Justices. ex parte Barnsley and District Licensed Victuallers' Association
| Jurisdiction | England & Wales |
| Date | 1959 |
| Court | Queen's Bench Division |
Justices - Bias - Licensing - Pecuniary interest - Application for off-licence by co-operative society - Justices members of co-operative society - Whether pecuniary interest conclusive of bias -
An application for a spirits off-licence at a drug department was granted to a co-operative society by seven licensing justices, six of whom were members of the co-operative society. On a motion for an order of certiorari to quash the decision on the ground that the justices had a financial interest in the matter under consideration and therefore were disqualified under section 48 of the Licensing Act, 1953F1: —
Held, (1) that at common law a direct pecuniary interest, however small, raised a conclusive presumption of bias on the part of a justice disqualifying him from acting in the matter under inquiry.
(2) (Salmon J. dissenting), that although the justices, who were members of the society were disqualified from acting by virtue of section 48 (4) of the Act of 1953, the effect of section 48 (5) was to oust the common law rule and to make an applicant for certiorari prove a real likelihood of bias whether by reason of pecuniary interest or otherwise, and in the present case the financial interest of the justices was not so substantial as to give rise to that likelihood; accordingly, the application failed.
Per Salmon J. Section 48 (5) saved any act which would otherwise be invalid by reason only of a disqualification under the statute; it did not save any act done by a justice disqualified at common law.
APPLICATION for an order of certiorari.
The applicants, the Barnsley and District Licensed Victuallers' Association and the Barnsley and District Off-Licence Holders' Protection Association, applied for certiorari to quash a decision of the Barnsley County Borough Licensing Justices granting to Robert Murray of the Barnsley British Co-operative Society Ltd. his application for a spirits off-licence at the Central Drug Department, Wellington Street, Barnsley.
The grounds of the application were that one or more of the licensing justices who made the decision was a member of the Barnsley British Co-operative Society Ltd., and (a) had a financial interest therein and was thereby disqualified by section 48 of the Licensing Act, 1953; (b) was thereby disqualified by bias.
H. C. Beaumont for the applicants.
John McLusky for the respondents, the Barnsley British Co-operative Society Ltd.
The following cases were cited in argument, in addition to those referred to in the judgment: Dimes v. Grand Junction Canal (Proprietors)F2; Reg. v. FarrantF3; Rex v. Stafford JusticesF4; Reg. v. Kent JusticesF5; Rex v. Williams, ex parte Phillips.F6
June 5. LORD PARKER C.J. The following is the judgment of DONOVAN J. and myself.
Mr. Beaumont moves in this case for an order of certiorari to bring up and quash a decision of the licensing justices for Barnsley given on March 5, 1959, whereby they granted an application by the Barnsley British Co-operative Society (hereinafter called “the society”) for a spirits off-licence at their central drug department in Barnsley. The society already holds a wine licence for the same premises.
There were two hearings in this matter. At the first on February 12 the justices apparently heard evidence and adjourned. Of the seven justices who then sat, five were members of the society and two were not. The spouses of these two justices were, however, members. At the second hearing when the application was granted seven justices sat, of whom six had sat on February 12. Of the total of seven justices, six were members and one was not. The husband of this one justice was, however, a member. The membership of the society is apparently so large and comprehensive that there is only one borough justice in Barnsley who (or whose near relative) is not a member, and that justice is a Member of Parliament.
The ground upon which the court is asked to quash the grant of a licence is that of bias on the part of the justices. It is not said that they acted dishonestly in any way or that they were in fact biased, but that their membership of the society (or the membership of their spouses), which attracts financial benefits, constitutes bias in law. We are told that for the year ended November 18, 1958, the total turnover of the society was some £12,000,000. Of this, £46,000 only represented the proceeds of the sale of wine, i.e., 0.36 per cent. of the total turnover. It is estimated that the new spirit licence will increase the trade by no more than £3,000 per annum. The justices concerned have small interests in the society by way of shares and loan deposits. The highest income that any one of them derived from these combined sources in the year ended November 1958 was £23.
The position of justices having a financial interest in concerns which brew or distil or sell intoxicating liquor has been the subject of specific provisions in various licensing Acts passed during the last century. (See section 60 of the
Section 48 (4), which deals with a case where a justice is interested in specific premises, provides:
“No justice shall act for any purpose under this Act in a case that concerns any premises in the profits of which he is interested, or of which he is wholly or partly the owner, lessee, or occupier, or for the owner, lessee, or occupier of which he is manager or agent: provided that a justice shall not be disqualified under this provision by reason of his having vested in him a legal interest only, and not a beneficial interest, in the premises concerned or the profits of them.”
Accordingly, whatever may be the position under subsections (2) and (3), a person having such a beneficial interest in the premises as subsection (4) prescribes may not act for any purpose under the Act in a case which concerns those premises. In its context in subsection (4) the reference to profits of the premises is clearly, we think, an elliptical way of describing profits arising from any trade in making or selling intoxicating liquor carried on from the premises. Accordingly, the justices in the present case who were members of the society were, in our view, disqualified from acting under subsection (4).
Pausing there, it is said, and this we think is undoubtedly true, that certiorari would lie. As was said by Blackburn J. in Reg. v. RandF7:
“There is no doubt that any direct pecuniary interest, however small, in the subject of inquiry, does disqualify a person from acting as a judge in the matter.”
Indeed, this is a rule of law and not a matter merely giving rise to a presumption of bias. Thus, in Rex v. Sunderland Justices,F8 Vaughan Williams L.J. said:
“If he (that is, a justice) has personally a pecuniary interest or an interest capable of being measured pecuniarily, the law raises a conclusive presumption of bias. For reasons of policy, which hardly require explanation, it is not thought convenient...
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