R v Windsor Licensing Justices, ex parte Hodes
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SLADE,LORD JUSTICE WALLER,LORD JUSTICE DUNN |
| Judgment Date | 23 March 1983 |
| Judgment citation (vLex) | [1983] EWCA Civ J0323-5 |
| Docket Number | 83/0145 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 March 1983 |
Re: Application By Hodes For Judicial Review
[1983] EWCA Civ J0323-5
Lord Justice Waller
Lord Justice Dunn
Lord Justice Slade
83/0145
CO 471/82
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE DIVISIONAL COURT
(MR JUSTICE WEBSTER)
Royal Courts of Justice,
MR JOHN HUGILL, Q.C., and MR J. FINNEY (instructed by Messrs. Cartwrights, Solicitors, Bristol) appeared on behalf of the Appellants.
MR A. ROSE (instructed by Messrs. Lovegrave & Durant, Solicitors, Windsor) appeared on behalf of the Respondents.
This is an appeal by Mr Gerald Hodes from a decision of Webster J., sitting in the Divisional Court on 19th November 1982, whereby he refused an application for judicial review arising out of a decision of the Licensing Justices for the Licensing District of Windsor given on 8th March 1982. The applicant is the manager of a store of Marks & Spencer PLC ("Marks and Spencers") at 130 Peascod Street, Windsor, ("the premises"). By their decision the Justices had refused to renew a justices' off-licence in respect of this store.
A justices' off-licence was first granted in respect of the premises by the Windsor Licensing Justices in 1975. The application was made and the licence was granted on the basis that the display and sale of intoxicating liquors was to be by self-service methods together with and in the same way as other goods in the Food Hall in this store. Since 1975 the off-licence had been renewed each year without any objection or opposition. It was transferred to the applicant on 14th May 1979 and subsequently renewed in 1980 and 1981.
On 12th June 1979 the Clerk to the Licensing Justices wrote a letter addressed to Marks & Spencers which referred to the adoption by the Justices of a new policy, described in the letter as a "shop within a shop" policy. The letter read: "My Divisional Licensing Committee has been considering for some time the question of the granting of Off-Licences to stores selling other merchandise as well. On the 6th June they met to discuss the matter again and unanimously decided that in future they would, as matter of policy, grant off licenses only to premises which were specifically designed as off licence shops orto multiple shops only if those stores operated a separate controlled area for the sale of intoxicating liquor. This policy is commonly referred to as a "shop within a shop" policy, and has not previously been the policy of the Windsor Divisional Licensing Committee. The Committee appreciate that some stores in Windsor are already operating with an Off-Licence on an open uncontrolled self-service basis, and the Committee expects these stores to comply with their new policy by February, 1981. Those premises, are being notified separately.
Your store is, of course, one of those affected by this change of policy. I would be grateful if you would confirm that you are prepared to comply with my Committee's requirements and ultimately submit plans showing the alterations you intend to make."
On 7th September 1981 the Clerk to the Licensing Justices wrote a letter addressed to "All holders of Off Licences". The letter said that the "shop within a shop" policy applied specifically to "shop or stores whose main function is to sell other goods and who wish, in addition, to sell liquor". It continued: "My Committee feel that you may appreciate having some guidance as to what they expect in Off Licences and, briefly speaking, they expect you to operate a "shop within a shop" in all cases where any self-service of goods exists. Liquor must not be accessible to any customers in the shop unless the area, being a self-service area, is fully supervised and separate from the shop and has its own check out.
If you a have any doubts perhaps you would bear in mind that you can attend the Brewster Sessions next February—in fact if your premises are considered not suitable you will be invited to attend—and you can raise any points at that time.
This policy applies to all intoxicating liquors for which a Justices' Licence is required."
Marks and Spencers decided that they did not wish to make the changes in the operation of the Food Hall at the premises which would have been required by the demands contained in these letters. On 26th January 1982, their solicitors wrote a letter to the Clerk to the Licensing Justices, referring to his circular letter of 7th September 1981 and, so far as material, continuing as follows: "Our Client Company have very seriously considered all that is stated in that letter and it is with regret that we have to inform you that they are unable to accept the operation of an Off Licence within their Store at the above address on a "shop-within-a-shop" policy.
It is the view of our Client Company that the strength of the supervision currently seen to exist within their premises coupled with the staff training which is undertaken on a regular frequent basis that the Food Hall of this Store is a strictly controlled area from which there is a very minimum of undetected stock loss.
The Food Hall itself attracts very few unaccompanied youngsters under the age of 18 years and since this licence was originally granted on the 14th July,1975, there has not to our knowledge been any abuse in the exercise of that privilege.
As you are aware, our Client Company do not sell spirits at any of their licensed Branches and in these circumstances intoxicating liquor of the highest value is not available to their customers.
In all circumstances, it is the wish of our Client Company to explain in detail to your Licensing Committee the reasons why they find themselves unable to comply with the policy and the steps that have been taken and will be taken to ensure that there is no abuse in any licence which they may be allowed to hold in the future.
We were pleased to have the opportunity of discussing the matter informally with your Deputy and understand that there would be no objection to our Clients' application for renewal being adjourned until your next Licensing Meeting on the 8th March next…"
On 8th March 1982, Mr F.M.J. Littler, the senior partner in the firm of the applicant's solicitors, appeared before the Licensing Justices to represent the applicant on his application for renewal of the off-licence in respect of the premises. Mr Littler has given an account of what took place at this hearing in paragraph 6 of an affidavit sworn by him on 19th March 1982. This account reads as follows: "I indicated to the said Licensing Justices that I had seen the letters (of 12th June 1979 and 7th September 1981) and it was confirmed by the Licensing Justices that there was no other objection to the renewal of the said Licence. I reminded the said Licensing Justices that they did not have power to impose conditions either directly or by was of the exaction of undertakings on the renwal of an Off Licence and informed them that the Applicant was not offering any undertaking. The said Justices indicated that they were not prepared at that stage to renew the licence and wished to hear the application for renewal in detail.
I then drew/the attention of the said Justices specifically to the relevant parts of the legislation and the notes thereto in the 90th Edition of Paterson's Licensing Acts, and, in particular, to Section 7 (4) thereof which requires evidence given on an application for renewal to be given upon Oath. At that stage the Clerk to the said Licensing Justices gave evidence on Oath that on behalf of the said Licensing Justices he made formal objection to the renewal of the said Off Licence. He gave no reasons therefore, merely expressing the view that all that was necessary was to state the objection. He was not cross-examined by myself. Thereafter I submitted to the said Justices that the said licence should be renewed there being no evidence of any grounds for objection thereto but the said Justices after retiring indicated that they would not renew the said licence. I then reminded them that, as yet, they had heard no evidence from the Applicant and his witnesses in support of the application for renewal and they then agreed to hear that evidence. It is sufficient for the purposes of those proceedings to say that that evidence dealt in some detail with the method of operation of the said premises in particular and other similar licensed premises operated by Marks & Spencers p.l.o. in general, and informed the Justices that the said premises were operated now as the said Justices had been informed that they would be operated on the original application and as they had been operated ever since. At the close of that evidence I again reminded the said Licensing Justices of my submissions in law, indicated that the Applicant was not prepared to comply with the policy set out in the letter (of 12th June 1979) or submit plans therein required and again submitted that there was no evidence in, support of the objection taken by the said Justices to the renewal of the said licence, there had been no abuse in the exercise of the licence, no contraventions of the legislation in respect of it nor any criticism from any of the relevant authorities, including the Police, and invited them to renew the licence notwithstanding the express policy. The said Justices then retired and returned a little later to say that the licence would not be renewed."
Faced with this refusal, the applicant, having obtained the appropriate leave, applied to the Divisional Court seeking a declaration that the Justices were wrong in refusing to renew the Justices' Off-licence, an order of certiorari to bring up and quash the decision and an order...
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