R v Howard
| Jurisdiction | England & Wales |
| Year | 1902 |
| Date | 1902 |
| Court | Court of Appeal |
Licensing Acts - Licence - Renewal - Discretion of Justices - Preliminary Inquiry as to Number and Condition of Licensed Houses - Objection to Renewal taken by Justices or by their Direction - Disqualification from Adjudicating on Application - Personal Interest or Bias -
The attention of licensing justices having been called to the number of licensed houses in their district, they appointed some of their number a committee to investigate and report on the condition, position, and circumstances of the licensed houses. A detailed report was made, and a recommendation that all applications for renewal should be objected to, and notice given to each of the licensees to attend at the hearing. The report was adopted, and the justices at the annual licensing meeting objected through their chairman to the renewal of all the licences, and directed that notice should be given to each holder of a licence to attend at an adjourned meeting. At that meeting evidence was heard upon oath in each case, and the justices decided against the renewal of nine of the licences. On appeal against a decision of the King's Bench Division refusing an application for a mandamus to the justices to hold a further adjournment of the licensing meeting, and to hear and determine according to law the applications for the renewal of the nine licences:—
Held, that since the justices were entitled to take, or direct their officer or agent to take, objection to the renewal of licences, they were within their rights in making a preliminary investigation as to the licensed houses in their district; and the fact that they had done so, and adopted the report of the committee appointed for the purpose of making the investigation, did not debar them from hearing the applications and deciding on the question of renewal.
APPEAL from a decision of the King's Bench Division discharging a rule nisi for a mandamus to justices to hold an adjourned licensing meeting, and to hear and determine an application for the renewal of a licence.
It appeared that in February, 1901, a letter was addressed by the clerk of the peace of the county of Surrey, by direction of the confirming committee of quarter sessions for the county, to the clerk of the Farnham justices. In this letter attention was called to the large number of licensed houses in the district of Farnham; and the justices thereupon held a meeting to consider the matter so brought to their notice. A committee of five was appointed to investigate and report on the matter. A circular letter was sent to the holders of licences, containing certain questions; and, further, the committee inspected all the licensed houses, forty-five in number, and obtained information from persons who were found on the premises. The committee reported the result of their inquiries as to the condition, position, and circumstances of each of the forty-five licensed houses in the district, and the report and recommendations of the committee were adopted by the licensing justices with one dissentient. At the next general annual licensing meeting an objection was made by Mr. Hayes, who was not one of the licensing justices, to the renewal of ten of the licences in the district; and the chairman, on behalf of the justices and in accordance with the recommendation of the committee, also objected to the renewal of each of the forty-five licences, stating that the reason the justices objected was in order that every one of the licensees might have equal opportunities of giving evidence before the justices, who might thus be enabled to decide with justice and fairness. The licensing meeting was thereupon adjourned for a fortnight, and the clerk was directed to serve formal notice in each case requiring the licensees to attend in person. The clerk was also directed to procure the attendance of the necessary witnesses at the adjourned meeting. The notices of objection were accordingly given, one ground stated being in each case that the licensed house was not required. At the adjourned meeting objection was taken on behalf of the applicants to the justices who had taken any part in the previous proceedings sitting to adjudicate on the applications for renewal. A separate objection was also taken to one of the justices on a ground personal to himself. The objections were overruled, and each case was gone into and evidence was given on oath, the witnesses being examined by the chairman. The result of the adjourned meeting was that the justices resolved to refuse to renew the licences in the case of Jane Emma Smith and eight other applicants.
Application was made to the King's Bench Division on behalf of each of the applicants the renewal of whose licences had been refused for a mandamus to the justices to hear and determine the applications according to law; and rules nisi were granted which, on argument, were discharged by the Court (Lord Alverstone C.J., Darling J., and Channell J.)
The applicants appealed.
1902 June 14. Danckwerts, K.C., and Avory, K.C., for the prosecutor, Jane Emma Smith. The first objection to the proceedings before the licensing justices is that it was not competent for them, sitting as licensing justices, to make an objection to the renewal of a licence. The opening words of s. 42, sub-s. 2, of the Licensing Act, 1872F1, shew that it was contemplated that the objection should be made by persons other than the justices, and not started by the justices themselves; and the proviso only applies to cases in which the person objecting has failed to give notice of his intention to oppose the renewal as required by the sub-section. It was held by Hawkins J. in Reg. v. Anglesea JusticesF2, which is the only judgment that has really dealt with this point, that the objection under the proviso to sub-s. 2 cannot be made by the justices. The case of Reg. v. FarquharF3 appears to have been the origin of the authorities to the contrary; but the question whether the justices could themselves initiate the objection was really not decided in that case. The real point there was that the justices had never given the applicant an opportunity of attending and being heard, and Blackburn J. only quite incidentally threw out the suggestion, that it was not impossible that the justices might of their own knowledge make the objection themselves, which suggestion appears to have been the foundation of the dicta in various cases relied on by the defendants. It is not disputed that a justice may waive his capacity of justice, and make an objection to the renewal of a licence in his private capacity, but he cannot so object as a justice. In Baxter v. LecheF4 this point never really arose, for in that case there was a notice of objection given by independent objectors.
Secondly, a justice who makes an objection to the renewal of a licence thereby disqualifies himself from sitting to adjudicate upon it. It is important for this purpose to bear in mind the distinction between an application for the grant of a fresh licence and an application for a renewal of a licence. In the case of the former the justices exercise their discretion without any objector or objection being required. The case of an application for a renewal is altogether different, and it has been held that there is a presumption in favour of renewal, and the burthen of proof is on the objector: see Evans v. Conway JusticesF5; Sharp v. Wakefield.F6 The justices, therefore, have to determine whether the burthen of proof has been sustained. How can the justices, if they have been themselves the objectors, impartially determine whether they have sustained the burthen of proof which lay upon them? They will be occupying the position both of prosecutor and judge. With regard to the alleged expression of opinion on these points by Sir E. Fry at sessions, referred to in an article in 64 Justice of the Peace, p. 642, it does not appear that the judgment of Hawkins J. in Reg. v. Anglesea JusticesF7 was cited to him, nor does it appear clearly whether in that case the justices who had objected to the renewal sat to determine the case. It is submitted that on principle the same person cannot assume the rôles both of prosecutor and judge: Reg. v. Antrim Justices.F8
A further objection arises on the question of bias. Assuming that the fair inference from the facts is that the justices came to the hearing determined to refuse the renewal of a certain proportion of the licences, can it be said that they brought impartial minds to the hearing, as they were bound to do? Then, with regard to the previous collection of evidence not on oath as to particular houses, no doubt justices might be entitled to look at the place and inform their minds with regard to the general circumstances of the neighbourhood, and suchlike matters, beforehand; but they are not entitled to make inquiries from persons not on oath with regard to particular matters affecting particular premises, and discuss these matters before the hearing. There are circumstances in this case raising a strong presumption that these justices had predetermined to reduce the number of licences, and that evidence was in pursuance of that determination collected before the hearing of a nature unfavourable to certain premises. In the judgment of the Divisional Court the case is treated as if the question were whether the justices did in fact decide impartially; but it has been repeatedly laid down that the question is not whether the justices were really biassed or decided partially, but whether there was a real likelihood of bias: see Reg. v. MeyerF9; Leeson v. General Council of Medical Education and RegistrationF10; Allinson v....
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