R v Knightsbridge Crown Court, ex parte Marcrest Properties Ltd

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE WALLER,LORD JUSTICE ACKNER
Judgment Date20 Dec 1982
Judgment citation (vLex)[1982] EWCA Civ J1220-5
Docket Number82/0496

[1982] EWCA Civ J1220-5

ON THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL

ON APPEAL FROM THE DIVISIONAL COURT

Royal Courts of Justice,

Before:

Lord Justice Waller

Lord Justice Ackner

Lord Justice Purchas

82/0496

CO/564/82

Marcrest Limited
and
Gaming Board for Great Britain and Anor

MR. GAVIN LIGHTMAN. Q.C. and MR J. ONIONS (instructed by Messrs. Durrant, Piesse) appeared on behalf of the Appellants.

MR S. TUCKEY. Q.C. and MR T. NICHOLSON (instructed by Messrs. Gregory Rowcliffe & Co.) appeared on behalf of the 1st Respondents.

MR J. RYMAN (instructed by the Solicitor for the Commissioner of Police) appeared on behalf of the 2nd Respondents.

LORD JUSTICE WALLER
1

I will ask Lord Justice Ackner to deliver the judgment of the Court..

LORD JUSTICE ACKNER
2

On 9th December 1981, on the application by the Commissioner of Police for the Metropolis and by the Gaming Board, the Gaming Licensing Justices for the South Westminster Petty Sessional Division cancelled the Gaming Licence held by Marcrest Properties Ltd., in respect of the Casino Club, the Knightsbridge Sporting Club, 163 Knightsbridge, London, S.W.7. They also made an order of disqualification prohibiting a licence under the Gaming Act 1968 from being held in respect of the premises during a period of 3 years.

3

The Justices made this decision after a hearing lasting some 20 days on the grounds that: "(l) Marcrest Properties Ltd. is not a fit and proper person to be the holder of a licence under the Gaming Act. (2) If the licence were not cancelled the club would be managed by and carried on for the benefit of persons other than Marcrest Properties Ltd., who would themselves be refused the renewal or grant of a licence under the Act on the grounds that they are not fit and proper persons to be holders of such a licence. (3) That while the said licence has been in force, the premises have been used for unlawful purposes."

4

Marcrest appealed to the Crown Court, but before 16th May 1982 when the hearing commenced, they had restructured themselves by the sale of the entire shareholding for a nominal £1,000 to a Mr Barnett, who nobody suggested was not a fit and proper person. This restructuring operation was carried out, no doubt in order to take advantage of the decision in Regina v. Knightsbridge Crown Court ex parte International Sporting Club (London) (1982) 1 QB 304, where the Divisional Court held that the question whether a company was a fit and proper person to hold a licence had to be considered in the light of any restructuring of the company which had occurred since the hearing before the Justices. This tactical move elimi- nated the Justices' second ground of decision referred to above.

5

The hearing before the Crown Court lasted some 14 days. The appeal was dismissed and the orders of cancellation and disqualification were confirmed.

6

Application was then made to the Divisional Court for judicial review, it being contended that the record disclosed at least four errors of law. The Divisional Court accepted that there was one error of law; it also held that the judgment delivered by the Crown Court was, in certain respects, slipshod, confused and mistaken, but in the end the Court had applied the right test. It concluded that Marcrest had suffered no injustice as a result of the error of law and, in the exercise of its discretion, it refused the application for an order of certiorari.

7

Marcrest now appeals to this Court and Mr Lightman on its behalf contends: (1) The error of law which the Divisional Court found (and which is not contested by the respondents) entitled Marcrest to an order for certiorari, and the Divisional Court wrongly exercised its discretion in refusing to make such an order. (2) That there were two other errors of law made by the Crown Court which the Divisional Court should have found, and that these errors, or either of them, justified the grant of an order for certiorari. (3) That the judgment of the Crown Court was so unsatisfactory that, taken with the error of law which was established in the Divisional Court and/or the other error or errors of law which the Divisional Court should have found, justice demanded that its decision be quashed and a new hearing of the complaints ordered.

8

The error of law found by the Divisional Court; To appreciate the nature of the error, it is necessary to refer shortly to the history of this casino. In May 1971, Knightsbridge Sporting Club Ltd. was granted a licence to operate this casino at 163 Knightsbridge. The licence was renewed annually, but allowed to expire in May 1978 for a purely technical reason. Where premises are enlarged a licence cannot be renewed. A new licence has to be granted. Such a new licence was granted in May 1978. On 22nd January 1980, the licence was transferred to the appellants. This licence was renewed in May 1980, but in 1981 the Gaming Board and the Commissioner applied for cancellation of the licence under paragraph 36 of Schedule 2 to the Gaming Act 1968, which application was duly referred to the Licensing Authority, who, by virtue of the powers conferred upon them by paragraph 42 of that Schedule, were entitled to "cancel the licence on any of the grounds specified in paragraph 20 or paragraph 21 of this Schedule". The Gaming Board and the Commissioner alleged that Marcrest was not "a fit and proper person to be the holder of a licence under this Act", (see ground (b) in paragraph 20) and that "while the licence has been in force the relevant premises have been an used for/unlawful purpose", (see ground (e) in paragraph 21).

9

There is no requirement for the provision of detailed particulars of the grounds for the application for the cancellation of a licence. Regulation 7 of the Gaming Clubs (Licensing) Regulations 1969, provides that the application shall be made in writing in the appropriate form set out in Schedule 2 of the Regulations. The form (Form 43) provides that the application "is made on the grounds specified in the statement, of which two copies are attached". Marcrest were, however, left in no doubt as to the nature of the complaints made against them. They were provided with a six page statement of amended grounds and, in addition, they were not only furnished with copies of statements of witnesses to be called in support of the application, but even with the names and addresses of witnesses whom the Commissioner or the Gaming Board did not propose to call, but who might be able to give relevant information. Marcrest had to meet a case of flagrant breaches of the requirements of the Gaming Act, involving inter alia, the unlawful granting of credit.

10

The totality of the material relied upon was all relevant to establish that Marcrest were not fit and proper persons to be the holders of a licence under the Act, and in the Amended Statement of Grounds the whole of the unlawful conduct of Marcrest from 1974 to 1980 was set out in six pages of particulars in support of the allegation that Marcrest were not fit and proper persons. At the end of the Statement of Grounds there was a further allegation that while the licences were in force the premises had been used for an unlawful purpose with a reference to the details already given.

11

In finding this latter complaint proved, the Crown Court (and for that matter the Justices) undoubtedly relied upon many of the incidents which occurred in 1975 and 1976 during the period of the first licence. It was never suggested, either to the Justices or to the Crown Court, that they were not entitled so to do. However, in the Divisional Court, Mr Lightman, who had not appeared either before the Justices or before the Crown Court, successfully submitted that "the licence" in ground (e) in paragraph 21 of Schedule 2 referred to above, refers to the licence of which renewal is sought, and he very properly supported this submission by reference to the definition of "relevant premises" in paragraph (ii) of the Schedule which reads: "The 'relevant premises' in relation to a licence under this Act……. means the premises in respect of which the licence is for the time being in force." He accordingly validly submitted that quite clearly this was the second licence, namely the one granted in May 1978, and that it was wrong in law for the Crown Court to find that incidents before 1978 could be relied upon as showing that the premises had been used for an unlawful purpose while the licence was in force.

12

Despite the highly competent representation on both sides, this simple point was overlooked until the hearing before the Divisional Court. We do which not find this altogether surprising. The conduct which was alleged, and which both the Justices and the Crown Court were fully satisfied had been established, did not lose its character of being unlawful because it occurred prior to the currency of the second licence. Nor did the fact that it took place prior to May 1978, disentitle the Commissioner and the Board from relying upon it in order to establish that Marcrest were not fit and proper persons. The point, if it had been taken, would merely have prevented any reliance being placed on this earlier conduct in support of the additional ground provided by paragraph 21 (e). Thus, such earlier unlawful conduct, while fully capable of establishing, as indeed it did, that Marcrest were not fit and proper persons to hold a licence, could not be used additionally to support the further ground of the application.

13

We can fully understand that if those then appearing for Marcrest had focused on this point, they might well have decided that tactically there was little or no merit in raising the point, because of its wholly technical nature in the circumstances of the...

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