The Porky Pint Ltd v Stockton on Tees Borough Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fordham |
| Judgment Date | 27 January 2023 |
| Neutral Citation | [2023] EWHC 128 (Admin) |
| Docket Number | Case No: CO/2177/2022 |
| Court | King's Bench Division (Administrative Court) |
[2023] EWHC 128 (Admin)
Mr Justice Fordham
Case No: CO/2177/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
SITITNG IN LEEDS
Paul Oakley (instructed by Tilbrooks Solicitors) for the Appellant
James Kemp (instructed by Stockton on Tees BC Legal Services) for the Respondent
Hearing date: 12.1.23
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HON. Mr Justice Fordham
Introduction
This case is about a pub which stayed open despite Covid-related restrictions and has lost its licence. The case comes before me as an appeal by way of case stated pursuant to section 111 of the Magistrates' Courts Act 1980, from an adjudication of District Judge Hood (“the Judge”) sitting at Teesside Magistrates' Court on 15 and 16 March 2022. The question for me is whether the Judge's adjudication was wrong in law. Three questions of law are stated in the Judge's stated Case of 11 May 2022 (the “Stated Case”). I first encountered this case in July 2022, in making the Venue Determination at [2022] EWHC 1705 (Admin) (the “July Judgment”). The appeal had wrongly been filed in London. The Administrative Court in London is not the National Administrative Court. Rather, it is the South-East Regional venue of the Administrative Court. As I explained in the July Judgment, this case plainly has its closest connection with the North-East Region, where the pub is located, where the events took place, where the hearings of the Respondent (“the Council”)'s Statutory Licensing Committee (“the Committee”) and of the appeal before the Judge took place, a geographical orientation and connection decisively outweighing the implications, inconvenience and travel cost associated with the Appellant's choice of Essex-based solicitors and London-based barrister.
The Porky Point is a popular pub in Mill Lane, Billingham. Its director and Designated Premises Supervisor is Mr Paul Henderson. After a hearing in July 2021 the Committee, on an application made by Cleveland Police (“the Police”) for a review of the licence, decided that the licence should be revoked. The Committee said this (Mr Kolvin QC is Counsel who represented the Appellant at that hearing):
The Committee noted and took into consideration the representations received in support of Mr Henderson and the premise. In excess of 40 representations had been received from local residents and others who supported Mr Henderson and the premise. These included character references praising Mr Henderson and comments showing that that the premise was valued by the local Community. The Committee noted that this it was very sad that the local community would lose out if the premise licence was revoked and the premise closed. The Committee noted that the pandemic has not ended and case numbers are continuing to rise especially in the North East, albeit the number of hospitalisations does not appear to be increasing. The Committee were not persuaded that Mr Henderson had an awareness of the impact of his actions or that he would not continue to act in such a reckless manner and undermine the licensing objectives in future… The Committee were not persuaded that Mr Henderson would act in a different way should there be any further lockdowns or restrictions imposed in the future. Despite the assurances provided by Mr Kolvin QC on behalf of Mr Henderson these were not persuasive. The Committee took this matter extremely seriously and were satisfied that this was a case where revocation of the premise licence was a necessary and appropriate sanction. After considering and weighing up all of the evidence and submissions made by the parties to the hearing the Committee resolved to revoke the premises licence .
The Appellant's appeal was then dismissed, and the revocation upheld, by the Judge for the reasons given in a judgment dated 16 March 2022 (the “Judgment”), after an oral hearing on 15 March 2022.
The relevant key features of the statutory scheme were identified by John Howell QC in Lalli v Metropolitan Police Commissioner [2015] EWHC 14 (Admin) at §§19–24. Under section 136 of the Licensing Act 2003 (the “2003 Act”) it is an offence to sell alcohol (or knowingly allow it to be sold) by retail on or from any premises without an authorisation. Such an authorisation can be given by a premises licence granted by a licensing authority under Part 3 of that Act. At the heart of the Act are the “licensing objectives” identified in s.4(2):
The licensing objectives are (a) the prevention of crime and disorder; (b) public safety; (c) the prevention of public nuisance; and (d) the protection of children from harm .
The “prevention of crime and disorder” licensing objective is also known by the shorthand “crime prevention objective” (see 2003 Act s.193(1)). A responsible body (the relevant licensing authority itself and the chief officer of police for the area or any other person) may apply for a review of a premises licence (s.51). The licensing authority may reject any ground on which the application is made if it is satisfied that it is not relevant to one or more of the licensing objectives. Having followed the prescribed procedure and having had regard to any relevant representations, the authority must take such of the steps mentioned in section 52(4) of the Act (if any) as it considers appropriate for the promotion of the licensing objectives. These steps are: “(a) to modify the conditions of the licence; (b) to exclude a licensable activity from the scope of the licence; (c) to remove the designated premises supervisor; (d) to suspend the licence for a period not exceeding three months; (e) to revoke the licence”. Prior to the hearing of the review, the application for the review must be advertised for representations to be made to the authority. Any determination on the review does not take effect until any appeal (s.183 and Sch 5) is disposed of.
As will be seen below from the Judge's Findings, the case arises out of the sequence of events from October 2020 to February 2021. During that time there was a sequence of Regulations in the form of Statutory Instruments made by the Secretary of State for Health, in the exercise of the powers conferred by the Public Health (Control of Disease) Act 1984 (the “1984 Act”). The prior sequence of such Regulations, in the first part of 2020, was described by the Court of Appeal in R (Dolan) v Secretary of State for Health and Social Care [2020] EWCA Civ 1605 [2021] 1 WLR 2326 at §§9–10. Subordinate legislation of that kind is lawful only if falling within the reach (vires) of the empowering Act. The key provisions of the 1984 Act, which the Court of Appeal in Dolan ruled did empower such Regulations, are set out in Dolan at §§44–54. The Regulations had a consistent design pattern. They made it a criminal offence to contravene, without reasonable excuse, the restrictions imposed in the Regulations, or to fail to comply with a Prohibition Notice issued under the Regulations. The Regulations also made provision for fixed penalty notices (“FPNs”), offering the person to whom the FPN was issued the opportunity of discharging, by paying the FPN, any liability to conviction for the offence in respect of which the FPN had been issued. For the hearing before me, Mr Oakley provided November 2020 Regulations ( SI 2020 No. 1200) which came into force on 5 November 2020; and December 2020 Regulations ( SI 2020 No. 1374) which came into force on 2 December 2020. After the hearing, he provided further Regulations ( SI 2020 No. 1611). The Judge described the sequence of relevant Regulations in the following way (taken from Judgment §§31, 32, 35), with which description no issue was taken on this appeal:
On 30 October 2020, Stockton-on-Tees Borough Council came within the Tier 2 area for the purposes of the coronavirus regulations. Under these regulations, meetings of 2 or more persons were prohibited indoors. However, para 4(10) allowed an exception for a wedding reception whereby a reception could be held provided it did not consist of more than 15 people … On 5 November [2020], the 4th set of regulations came into force and required public houses to close. The sale of food or drink including alcohol was allowed under Regulation 17 provided it was off the premises… All areas of England were in Tier 4 from 6 January 2021. In effect, this continued the previous No 4 restrictions regarding closure of public houses with the exception that sale of food/drink for consumption off the premises was now no longer allowed…
The steps taken by the Council and the Police included the following, again as described in the Judgment (§25):
A warning letter was issued to Mr Henderson on 13 November 2020. When this was unsuccessful, a prohibition notice was issued on 23 November 2020. Following a longer period without any reports of incidents, an incident on 30 January 2021 resulted in a fixed penalty notice being issued on 9 February. This was preceded by a telephone call and further warning letter on 29 January 2021 .
In the Committee's determination there was a discussion of events of 22 June 2021, said to involve the Appellant's staff and customers not wearing face coverings. The Judge put those to one side. He concluded – given that the then Regulations provided for reasonable excuses and given that insufficient was known about the individuals and their characteristics – there was insufficient evidence to be able to determine that this conduct should be taken into account. I too leave that out of account.
The Judge set out the principles governing his function on appeal (on which there was and is...
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