Licensing appeals in the Spotlight

14 June 2011

The right to appeal against the decision of a local licensing authority has recently been under the judicial spotlight. In particular, the courts have been grappling with the tricky question as to the extent to which the appeal court is entitled to hear evidence and decide the matter afresh. Important principles emerge which will be relevant to those involved in, and affected by, decisions under the Licensing Act 2003 (“the 2003 Act”).
In Hope & Glory Public House Limited v City of Westminster Magistrates’ Court [2011] EWCA Civ 31, the appellant (“Hope & Glory”) took issue with a number of conditions imposed upon its licence by the Licensing Sub-Committee of Westminster City Council. Hope & Glory owned a licensed public house in Soho, London. Its licence was reviewed following complaints by local residents about the level of noise caused by customers taking their drinks out of the premises and congregating on the street in the evening. The conditions imposed by the Sub-Committee included a provision that no customer should be permitted to take drink from the premises in an open container after 6 p.m.
Under s.181 of the 2003 Act, a right of appeal is available to the Magistrates’ Court, a right which was exercised by Hope & Glory in appealing, initially, to the City of Westminster Magistrates’ Court. Rejecting the appeal, District Judge Snow stated that he was satisfied that the “conditions imposed by the Licensing Sub-Committee are necessary and proportionate to ensure the promotion of the licensing objectives”. Hope & Glory appealed again, this time to the Court of Appeal, arguing that the legal approach adopted by the district judge had been unduly narrow.
The difference between appeals 
It is appropriate to recognise that not all appeals are in fact equal in scope. Classically, lawyers draw a distinction between a “review” on the one hand and an “appeal proper” on the other. The former involves the appeal court restricting its enquiry to the question as to whether the original decision maker was entitled to reach its decision. Typically, the appeal court’s enquiry might be restricted to the question as to whether the original decision maker conducted itself properly, according to its own procedures, and exercised its discretion to arrive at a decision which was within the range of outcomes reasonably available to it. That is a quite different question from the wider consideration as to whether the decision reached was, in fact, the right one. An “appeal proper” on the other hand is more extensive than a review, allowing evidence (and potentially new evidence) to be (re-)heard in assessing the merits (as opposed merely to the legality) of the original decision and determining the matter afresh. As will be obvious, the point is an important one because it defines the extent of the right of parties to challenge the underlying decision. The nature of the appeal available may be defined, as here, in legislation, or may be dictated by considerations of fairness and, in certain contexts, by the Human Rights Act. It was accepted in the Hope & Glory case that the appropriate appeal mechanism was a re-hearing, at which evidence could be led. The Appellants, however, contended that the district judge had nonetheless misdirected himself because he had “wrongly placed the burden on the appellant to disprove that the noise caused by customers ... was such as to amount to a public nuisance and that the conditions imposed by the Licensing Authority were necessary and proportionate.” In effect, according to Hope & Glory, the district judge had placed too great a weight on the original decision of the Licensing Sub-Committee, incorrectly placing the burden of disproving the basis for that decision upon the Appellant, which was thereby denied a fair hearing.
A ‘third way’?
The challenge for the Court of Appeal in Hope & Glory lay in reconciling apparently contradictory authorities which, on the one hand, required that the appeal was an “appeal proper”, allowing evidence to be called and (re-) heard, and a fresh decision reached, and, on the other, attaching weight to the original decision of the licensing sub-committee to the extent of placing the onus on the appellant to disprove the basis for that decision. The Court held that these two conceptual approaches could in fact be reconciled and that the district judge had been correct in his approach. Dismissing the appeal, the Court endorsed the approach of Lord Goddard CJ in Stepney Borough Council v Joffe [1949] 1 KB 599, also quoted with approval by Edmund LJ in Sagnata Investments Limited v Norwich Corporation [1971] 2 QB 614. Having recognised that there was in that case an unrestricted appeal, involving the (re-)hearing of evidence, Lord Goddard stated as follows; 
“That does not mean to say that the court of appeal..... ought not to pay great attention to the fact that the duly constituted and elected local authority have come to an opinion on the matter, and ought not lightly, of course to reverse their opinion. It is constantly said (although I am not sure that it is always sufficiently remembered) that the function of a court of appeal is to exercise its powers when it is satisfied that the judgment below is wrong, not merely because it is not satisfied that the judgment was right”.
Following this analysis, the district judge had been right in his approach and there was no inconsistency in, on the one hand, allowing a full (re-) hearing of evidence, whilst, on the other, placing weight upon the decision of the licensing authority such that the onus lay with the appellant to disprove its decision.
Last word (for the time being)
Asked recently to interpret Hope & Glory in the context of judicial review proceedings, the Administrative Court in the case of The Queen on the Application of Townlink Ltd v Thames Magistrates Court (Townlink) [2001] EWHC 898 (Admin) made clear that the appeal court does require to consider, “the rightness of the decision itself” and not merely its legality. Having regard to the passage from Lord Goddard, quoted above, Lindblom J stated that the appeal court had nonetheless, “to come to [its] own conclusion on the merits of the appeal”, and accordingly, “to consider on the merits whether the decision of the licensing subcommittee ought to be upheld”.
In thus interpreting the Hope and Glory decision, the Court in Townlink appears to have placed greater emphasis on the requirement for a full re-hearing as compared to the weight to be attached, at appeal, to the licensing authority decision. If that is correct, however, the question does seem to be begged as to what importance is actually to be attributed to the judicial direction, approved in Hope & Glory, to the effect that the appeal court should “not lightly reverse” the licensing authority decision, only doing so if, “satisfied it is wrong”. If in fact, following Townlink, the rightness, or wrongness, of the original decision is to be decided following a fresh consideration in light of a full re-hearing, one might be forgiven for wondering whether in fact we have moved very far from an ‘appeal proper’, as traditionally understood. 
No doubt we have not heard the last judicial word on the subject. In the meantime, the approach taken in the recent cases would appear encouraging to those contemplating appeals- and who are able to present evidence to support their position. The discussion in this area will also be of relevance to the regulatory bodies whose decisions are subject to statutory appeal. The key point will be to be clear as to the extent and scope of that appeal mechanism, and as to the approach which may therefore be taken by the court.
Ben Kemp

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