R v Liverpool City Council (ex parte Karl Barry)
| Jurisdiction | England & Wales |
| Judge | application for permission to apply for judicial review,MR JUSTICE MAURICE KAY |
| Judgment Date | 07 April 2000 |
| Judgment citation (vLex) | [2000] EWHC J0407-6 |
| Docket Number | Case No: CO/1770/99 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 07 April 2000 |
[2000] EWHC J0407-6
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
Liverpool Crown Court
Queen Elizabeth II Law Courts
Liverpool L2 1XA
The Hon Mr Justice Maurice Kay
Application For Permission To Apply For Judicial Review
Case No: CO/1770/99
Mr Vincent Fraser (instructed by Liverpool City Council for the Respondent)
Mr John de Bono (instructed by Kilner Polson for the Applicant)
Liverpool City Council (the Council) is the licensing authority for the grant of public entertainment licences within its area pursuant to section 1 and schedule 1 of the Local Government (Miscellaneous Provisions) Act 1982. Such licences are required for "public dancing or music or any other public entertainment of a like kind" (schedule 1, paragraph 1(2)). Currently, there are over three hundred and fifty such licences in respect of premises in Liverpool. They customarily have door staff who control entry to and security on the premises. For some years there has been concern in Liverpool and elsewhere about the quality of door staff on premises with public entertainment licences. This is apparent from Home Office and Police studies and is summarised in the present proceedings by Mr. Culkin, a solicitor employed by the Council, in his affidavit:
"In recent years there has been a marked tendency for organised criminals to seek to control door staff on licensed premises. This has led to violence both within licensed premises and outside. The control of door staff has been seen as a means for controlling the supply of illegal drugs within licensed premises and has also involved other illegal activities such as extortion and money laundering."
Between 1990 and 1992 the Council engaged in a consultation exercise with licensees, their solicitors and the Merseyside Police. As a result, the Council resolved to impose a condition in public entertainment licences from 1 December 1992 which required a licensee to maintain on his premises a register of all security staff employed at the premises and to make the register available for its inspection during licensed hours by appropriate officers of the Council and the Police. This scheme was not successful. The licensees accepted that it was not possible for them to operate a successful registration scheme. Accordingly, in December 1995 the council resolved to impose a new condition on public entertainment licences which was based upon registration of attendants and security staff not by the licensees but by the Council itself. The most important part of the condition was in these terms:
"The licensee …..shall ensure that no person is employed, engaged or present as an attendant/security person in or about the premises unless they have been registered for such purpose by Liverpool City Council prior to commencement of their duties."
Later in December 1995 a Home Office Circular 60/1995 published guidance for such registration schemes. The scheme which the council had resolved to adopt did not conform in all respects with the guidance in the Home Office Circular. Accordingly, there followed a protracted period of reconsideration and further consultation. All this received extensive coverage in the local press and in the trade press. During this period, many other local authorities in the surrounding area and much further afield adopted and implemented such schemes. Eventually the council adopted the final version of a scheme which was implemented as and when each public entertainment licence came up for renewal after March 1998. The Council's Licensing Officer wrote to all licensees in the following terms:
"The City Council is to start registering all attendants and door staff required as a condition of your public entertainment licence as from 1 April 1998.
In order to comply with the licence condition you should ensure that any attendants or security staff you employ apply for registration with the local authority as soon as possible. To assist you a copy of the council's guidance notes on the scheme are attached."
The scheme has operated with widespread acceptance. In the twelve months from April 1998 to March 1999 the council received 865 applications for registration. Of these, 721 were approved. 72 were still under consideration at the end of the year. 52 met with refusal when not approved by the Police. Of those 52, 32 availed themselves of a right of appeal to an Appeals Panel and 18 of the appeals were allowed.
The Applicant is a self employed door attendant who works at an establishment in the City centre known as the Beluga Bar. On 15 September 1998 the Council's Licensing Officer wrote to the licensee of the Beluga bar in the terms to which I have referred. Soon after receiving the letter, the licensee passed it to the Applicant. The Applicant opposes the registration scheme. I shall have to return to the chronology which followed his receipt of the letter. It resulted in his lodging an application for permission to apply for judicial review on 5 May 1999. When the application for permission came before Mr Justice Turner on paper he directed that it should be renewed in open court upon notice. The Form 86A seeks to challenge a decision of the council to impose a mandatory condition for the grant of public entertainment licences that all attendants and door staff be registered with the Council and in particular a decision "on about 15 September 1998 to start registering attendants and door staff under the said condition". In its original form the relief sought is certiorari in respect of the condition and the latter decision and/or an order of prohibition to prevent the condition or registration from being implemented.
The test to be applied upon an application for permission.
At the hearing of this application for permission, which occupied virtually a full day, I had the benefit of detailed submissions on behalf of both parties. In addition to the evidence relied upon by the Applicant, there is an affidavit on behalf of the Council with 260 pages of exhibits. In these circumstances Mr. Fraser submitted that the appropriate test is not whether the Applicant's case is arguable but whether it reaches the higher threshold referred to in Mass Energy Ltd. V. Birmingham City Council [1994] Env. L.R. 298 where Glidewell LJ said (at pp 307–308):
"…..we have most, if not all. of the documents in front of us; we have gone through the relevant ones in detail —indeed in really quite minute detail in some instances —in a way that a court dealing with an application for leave to move rarely does, and we are thus in as good a position as would be the court at the substantive hearing to construe the various documents…….[I]n my view, the proper approach of this Court in this particular case, ought to be —and the approach I intend to adopt will be —that we should grant leave only if we are satisfied that Mass Energy's case is not merely arguable but is strong; that is to say, is likely to succeed."
See also Scott LJ at p. 311 and Evans LJ at p.318. Although their Lordships were considering the matter in the Court of Appeal, there is no reason why, as a matter of principle, the same approach should not equally apply in appropriate cases at first instance where permission is sought: see Regina v. London Docklands Development Corporation, ex parte Sister Christine Frost (1996) 73 P+CR, 203. In my judgment, the present case is such an appropriate case and I shall apply the test propounded by Glidewell LJ, where appropriate.
I should add that, as the hearing progressed, I canvassed with counsel whether I should simply treat it as a substantive hearing on the basis that all the evidence was before me and I was hearing comprehensive submissions. Such a course was supported by Mr. Fraser but Mr. de Bono, whilst accepting that I had the power so to proceed as a result of my case management powers, urged me not to do so on the basis that, if the application proceeds further, he would wish to seek further information about the scheme and its operation from the Council under Part 18 of the Civil Procedure Rules. Although I am sceptical about the potential of such information, I have decided to treat this as no more than an application for permission, albeit one to which the Mass Energy approach is appropriate. With this in mind I shall turn to the grounds of challenge. Not all of them were spelt out in the Form 86A but I agreed to hear them nevertheless.
Is the creation of a scheme ultra vires?
In creating the scheme, the Council has sought to use powers which arise under Schedule 1, paragraph 11 of the 1982 Act which provides:
"The appropriate authority may make regulations prescribing conditions applicable to all, or any class of, entertainment licences, that is to say terms, conditions and restrictions on or subject to which such licences, or licences of that class, are in general to be granted, renewed or transferred by them"
Mr. de Bono submitted that that provision, which exists to enable general conditions to be applied to entertainment licences, does not provide a basis for an authority to regulate by registration doorkeepers who are not parties to such licences. He referred to the scheme as having been "introduced by the back door", adding that it is of a type which had not been envisaged at the time when the 1982 Act came into being. In this connection he referred to the contemporaneous Home Office Circular 62/1982. That document described the purpose of the public entertainment licensing system as being
"to introduce a uniform system of control to ensure public health and safety over places of...
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