R v Stafford Crown Court, ex parte Shipley
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SIMON BROWN,LORD JUSTICE HENRY:,LORD JUSTICE AULD |
| Judgment Date | 12 December 1997 |
| Judgment citation (vLex) | [1997] EWCA Civ J1212-11 |
| Docket Number | QBCOF 97/0012/D |
| Court | Court of Appeal (Civil Division) |
| Date | 12 December 1997 |
[1997] EWCA Civ J1212-11
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION (CROWN OFFICE LIST)
(MR JUSTICE KEENE)
Royal Courts of Justice
Strand
London WC2
Lord Justice Simon Brown
Lord Justice Henry
Lord Justice Auld
QBCOF 97/0012/D
In the Matter of an Application for Judicial Review
MR J SAUNDERS QC (Instructed by Messrs Jeffrey Green Russell, London W1Y 0SX) appeared on behalf of the Appellant
MR J QUIRKE (Instructed by The Chief Constable's Office, Staffordshire Police, Staffordshire, ST17 0QG) appeared on behalf of the Respondent
For the reasons given in the judgment handed down, the appeal will be dismissed.
INTRODUCTION
This appeal raises fundamental questions of liquor licensing law in relation to the late-night (up to 2.00am—or 3.00am in London) sale or supply of liquor under a Special Hours Certificate (SHC) granted by licensing justices under Section 77 of the Licensing Act, 1964 as amended (the Act).
If a music and dancing licence is in force for the premises, then an SHC may permit the sale of liquor ancillary to the music and dancing and substantial refreshment that are provided to a later hour than is permitted by the regimes under which normal licensing hours are extended. The respondents contend that on days when the SHC permits the sale of liquor, the permitted hours for such sales (and the conditions of them) are set out in the SHC.
The appellant contends that an SHC is simply a "bolt-on extra" to the permitted hours of his existing on-licence which only becomes operative after normal closing time. Thus he claims that until 11.00pm the premises can operate as a normal pub, selling liquor on its own, ancillary to nothing, under the general licensing hours permitted by Section 60. After 11.00pm, he contends that he can continue to sell liquor under his SHC provided that its sale is ancillary to the provision of dancing and food for so long as the SHC permits. So for the first part of his evening his "permitted hours" are those permitted by Section 60, and from 11.00pm onwards by the hours permitted by the SHC granted under Section 77.
The issue arises in this way. The appellant holds a full justices on-licence for a public house known as Stones in the Market Place in Cannock, Staffordshire. The police describe the premises as "a one-room pub, with a very small dance-floor, selling pub food". From December 1993 until April 1995 the premises had an SHC for Wednesday to Saturday whereby the permitted hours lasted until midnight. In April 1995, however, the public entertainment licence for the premises was by oversight not renewed so that by virtue of s.81(1) of the 1964 Act the SHC was revoked automatically. Following the grant of a new public entertainment licence on 4th October 1995 permitting the premises to be used for public dancing, music and other public entertainment between 11 am and 12 midnight on week-days and Saturdays (with more restricted hours on Sundays), application was made for a new SHC on the same terms as before. That application was heard by the Cannock Licensing Justices on 4th December 1995. There were no police objections, but they asked for a limitation on the time of commencement of the permitted hours of the SHC to 7 pm. Their reasons for so doing are set out in the Chief Officer of Police's affidavit:
"A policy of requesting the justices to impose starting times on Special Hours Certificates has been agreed by Divisional Command. The reasons include:
(a) The spirit of the legislation distinguishes in our view between operations (however called) which are essentially of the night club/entertainment variety and pubs intending to open late. Pubs are not always structurally adapted to the purposes of providing entertainment set out in paragraph 77 of the Licensing Act 1964. Many are marginally so. The instant case must be near the border of such a requirement.
(b) Night clubs and pubs should be distinguished as intended by Parliament. If not, a large number of pubs will be applying for Special Hours Certificates and turning into "night clubs" after 11pm by means of the contended "bolt-on" provisions. The consumption of alcohol all day followed by consumption which may or may not be detectable as ancillary to entertainment etc is undesirable.
(c) If Special Hours Certificates proliferate, the resources of the police will be stretched more widely to cope with an increase in the number of potential sources of disorder. There are already a number of bona fide night clubs in the Cannock Town Centre Area which open until 2am and are easily identifiable as such for the purposes of Special Hours Certificates.
It is upon these facts that I instructed Police Inspector Timmis to make application to the justices to impose a start time upon Stones, The Stumble Inn and Silk's Night Club. All of these premises proposed to make applications for section 77 Special Hours Certificates at the Cannock Licensing Justices on Monday 4th December 1995. The imposition of such a restriction will in my view sort out those who wish to run night club operations in accordance with the intent of the Act from those who wish to run extended hours "pub" operations. The alternative is that breweries will see the Special Hours Certificate more and more as a way of extracting extra revenue from "pub" operations on the basis of a convenient misapprehension of the law."
That affidavit is useful in explaining the police view. It was before Keene J, but not before the justices, nor the Crown Court on appeal. We do not know whether those submissions were made to those courts, and it does not help the questions of statutory construction. Similar comments can be made as to the affidavits before Keene J, and us, setting out the appellant's view, which I deal with below.
The justices granted an SHC so limited "in respect of Wednesday, Thursday, Friday and Saturday with a start time of 7 pm and an end time of midnight." This was quite unacceptable to the appellant. He submits that if the respondents are right, it leaves him and others like him, on days when the SHC is operative, with the choice of either accepting the loss of his day time trade and operating under the SHC alone, or surrendering his SHC and reverting to the general licensing hours for the district (see paragraph 5 of Mr Coulson's affidavit at p 281). The appellant submits that to impose opening hours on an SHC was, before the case of Marsden (see below) unheard of. And Mr Coulson, a specialist legal journalist, suggested than an object of the Licensing Act, 1988 was to ensure that thereafter:
"special hours certificates were to be a form of extension to permitted hours, similar to other extensions [presumably under Sections 68 & 70] and not, as previously, a set of 'special hours' throughout the day"
The appellant's appeal against that decision was heard at Stafford Crown Court on 31st May 1996 by Judge Chapman sitting with Licensing Justices. The appellant argued that the Cannock Licensing Justices had no power to limit the commencement time of the SHC. The appeal, however, was dismissed because the court (reluctantly) ruled that it was bound by Owen J's decision in Chief Constable of the West Midlands v Marsden (unreported, 7th April 1995); he had held that the power exists. By these judicial review proceedings the appellant seeks to quash that decision of the Stafford Crown Court. Their application failed before Keene J on 16th December 1996. They now appeal to this court.
Two grounds of appeal are raised:
"1 The learned Judge erred in ruling that by virtue of S. 78A of the Licensing Act, 1964 the Licensing Justices were entitled to restrict the time of commencement of permitted hours in premises which had the benefit of a Special Hours Certificate.
2 The learned Judge erred in law in ruling that throughout the permitted hours in premises w[h]ere a Special Hours Certificate was in force the sale of alcohol has to be ancillary to music and dancing and/or substantial refreshment."
The actual legal issue involved in this case is Ground 1, whether the magistrates had power to impose an opening time of 7.00pm on days when the Special Hours Certificate applied. The appellant sought to broaden the debate by Ground 2, raising the question whether, on days when the SHC applies, the sale of liquor during the hours permitted by the SHC must be ancillary to the provision of music and dancing and refreshment (the respondent's case) or need only be so ancillary after the expiry of the "general licensing hours" as defined by Section 60 of the Act. It is said that this second issue is, in the words of Keene J, "a significant consideration in the determination of the main issue". The argument runs that unless the sale of liquor during the permitted hours on days when the SHC was operative has always to be ancillary to the food and entertainment provided, there would be no point in imposing an opening time. I understand that point and will consider it, but at the end of the day, it is the first ground of appeal that is decisive.
This is because if the justice have power to lay down at what time the Special Hours Certificate comes into effect, then (as will be seen) there being no statutory fetters on the exercise of that jurisdiction, on ordinary principles the limits on the exercise of that discretion is that it should be used to promote the policy and the objects of the Act (see Padfield -v- Minister of Agriculture, Fisheries and Food [1988] AC 977). The police policy set out in the Chief Officer of Police's affidavit...
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