Knowing right from wrong

In the last couple of years a variety of arguments have been made before magistrates' courts as to the nature of licensing appeals from the licensing authority to the magistrates' court. Typical arguments include, that all the magistrates' court on appeal could consider would be the decision of the licensing authority, and whether, at the time the decision was made, the reasons were correct, or whether there was sufficient evidence before the committee to come to the conclusion they did, or whether the matter had been correctly conducted or correctly presented to the licensing panel. In other words, whether their decision was right at the time they made it.

These effectively try to limit the appeal to judicial review grounds or an appeal on law only. There have been several cases before the higher courts where this issue has been dealt with last year. The most important of which was the decision of the Court of Appeal in R on the application of Hope and Glory Public House Ltd and the City of Westminster Magistrates' Court and the City of Westminster [2011] EWCA Civ 31. The only issue that went to the Court of Appeal was as to the nature of an appeal to the magistrates' court.

By section 181 of the Licensing Act 2003 the magistrates' court on appeal may dismiss the appeal, substitute any other decision that could have been made by the licensing authority, or remit the case to the licensing authority with directions as to its disposal.

In the various judgments, several older cases were considered. The first of these is Stepney Borough Council v Joffe [1949] 1KB 599. It concerned three street traders whose licences were revoked under the London County Council (General Powers) Act 1947. Section 25(1) of that Act provided for an appeal in very similar wording to the appeal provisions of section 181.

In Joffe it was argued that, all the magistrate could decide on appeal was whether there was evidence from which the council could come to the conclusion that it did. Lord Goddard CJ refused to accept that argument, saying that, if that were the case, the right of appeal would be 'purely illusory' and tantamount only to an appeal on a point of law. He considered, in contrast, that section 25(1) gave an unrestricted right of appeal and so the appeal court could substitute its own opinion for that of the borough council.

He said that the appeal court ought not lightly to reverse the local authority's opinion and should only do so when satisfied that the court below was wrong. Importantly, however, he made the point that the appeal power was very wide and the court should act according to the judgment it forms on the matter. If parliament had intended the limitation on the appeal power argued for, 'they would have inserted express words into the section limiting that right'.

The same comment can be made about the right of appeal in section 181: to limit the appeal to judicial review or a matter of law only, express words should have been put into section 181. As they have not, there are no such limits.

Joffe was followed by Sagnata Investments Ltd v Norwich Corporation [1971] 2 QB 614. In that case, Edmund Davies LJ in the Court of Appeal felt that (the recorder) should be free to 'embark on a complete consideration of all the relevant material presented to him', and the appeal was a complete re-hearing. Although the views of the local authority were not to be entirely disregarded, the recorder had to act on the totality of the material before him, balancing that called by the appellants and the local authority, and paying 'due' regard to the local authority's decision.

Coming back to the Hope and Glory case, in the High Court, Burton J made it clear that the hearing is a hearing de novo and that new evidence can be presented and must be considered by the appeal court. In his judgment, Burton J states: '... the task for the district judge '“ having heard the evidence which is now before him, and specifically addressing the decision of the court below '“ is to give a decision whether, because he disagrees with the decision below in the light of the evidence before him, it is therefore wrong. What he is not doing is either, on the one hand, ignoring the decision below, or, on the other hand, simply paying regard to it.'

Weighing up

The Court of Appeal considered the weight to be given to the licensing authority's decision. It stated that it was not possible to give a formulaic answer to that because it depended on a variety of factors. The evidence called on the appeal may, or may not, throw a very different light on matters. Finally, the court concluded that, given all the variables, the proper conclusion can only be stated in very general terms. While it was right that the magistrates' court should pay careful attention to the licensing authority's reasons, bearing in mind that parliament has chosen to place responsibility for making such decisions on local authorities, 'the weight which the magistrates should ultimately attach to those reasons must be a matter for their judgment in all the circumstances, taking into account the fullness and clarity of the reasons, the nature of the issues and the evidence given on appeal'.

So, it is not automatic that considerable weight or indeed very much weight at all should be given to the local authority's decision. The court also considered whether the appeal should only be allowed if the appeal court is satisfied that the licensing authority's decision is wrong. The Court of Appeal agreed with the way that this had been dealt with by Burton J in the High Court below in only three paragraphs of his judgment (43-45). Burton J referred to Lord Goddard's and Edmund Davies LJ's words as carefully chosen: 'What the appellate court will have to do is to be satisfied that the judgment below is wrong, that is to reach its conclusion on the basis of the evidence before it and then to conclude that the judgment below is wrong, even if it was not wrong at the time. That is what this district judge was prepared to do by allowing fresh evidence in, on both sides.'

He did not think that 'wrong' meant Wednesbury unreasonable as the appeal was not one of judicial review. Burton J said that 'the task for the district judge '“ having heard the evidence which is now before him, and specifically addressing the decision of the court below '“ is to give a decision whether, because he disagrees with the decision below in the light of the evidence before him, it is therefore wrong'. He also stated that the burden of proof is on the claimant.

This makes it quite clear that it is not a matter of Wednesbury unreasonableness or law only, i.e. it is not a matter of whether the hearing was conducted properly, whether it was presented properly to the licensing panel, or whether the reasons given by the licensing panel were wrong. The approach on appeal is not whether the council decision was wrong at the time it was made.

The correct approach is that the magistrates' court, having heard all the evidence before it and having given the decision below the weight that the court considers it deserves in all the circumstances, has to decide whether it agrees with the decision below or not, i.e. the magistrates' court must come to its own opinion, and, if its opinion differs from the court below, then the licensing authority's decision is wrong. There is no mention of the appeal court 'not lightly' reversing the licensing authority's decision or of their decision being a 'stricture', because it is up to the magistrates to decide the importance to be given to the earlier decision. The district judge in Hope and Glory was therefore incorrect when he stated that he ought 'not lightly' to reverse the licensing authority's decision.

Pre-trial review

The next case is R on the application of Developing Retail Ltd ex parte East Hampshire Magistrates' Court [2011] EWHC 618 (Admin). The judge quoted the Court of Appeal decision in Hope and Glory and repeated that the weight that magistrates should ultimately attach to the licensing authority's reasons is a matter for their judgment 'in all the circumstances, taking into account the fullness and clarity of any reasons provided, the nature of the issues and the evidence given on appeal'. The magistrates had to consider whether the licensing authority's decision was wrong on the basis of the evidence put before the magistrates' court, not Wednesbury unreasonableness.

The judge concluded: 'This means that the task of the magistrates' court, having heard the evidence and specifically addressed the decision of the authority below, is to give a decision whether, because they disagree with the decision below in the light of the evidence, it is wrong. The magistrates therefore have power not merely to review the decision on the grounds of an error of law but also on its merits.'

The Court of Appeal in Khan v Coventry Magistrates' Court [2011] EWHC Civ 751, quoted the Court of Appeal decision on appeals in Hope and Glory with approval and said that, at the magistrates' hearing of the appeal, the court had to make its decision on the basis of the evidence before it.

This case also makes a different point, which is that, when hearing an appeal, the court is not limited to considering only the grounds of complaint that were raised in the notice of application or the representations before the licensing authority, but is entitled to consider evidence of events occurring before the application to the licensing authority as well as evidence of events occurring since its decision. However, the other party to the appeal must have proper notice of those grounds and the nature of the case against him so that he has a fair chance of meeting it.

So, proper procedures must be in place in the magistrates' court to ensure that both parties are aware, in advance of the hearing, of the case they have to meet and the evidence on which it will be based. A proper pre-trial review ought to deal with that matter, and it is certainly something for all parties to be aware of when seeking those directions, and indeed later.