Reviewing licensed premises
Gerald Gouriet QC considers how long interim steps taken by a licensing authority should remain in force
Interim steps taken by a licensing authority under section 53B of the Licensing Act 2003 cease to be effective on the determination of the full review under section 53C, a county court decided in Chief Constable of Cheshire v Gary Oates (19 December 2011). The interim steps, said the district judge, do not remain in force during the period given for appealing the review decision (21 days), or pending determination of any such appeal. Her decision was contrary to the DCMS Guidance on Expedited/Summary Reviews, which states: 'The decision of the licensing authority, following the review hearing, will not have effect until the end of the period allowed for appeal, or until the appeal is disposed of. Any interim steps taken will remain in force over these periods.'
I believe the DCMS guidance is correct, and the decision of the district judge is wrong.
Sections 53A, B and C are universally regarded as an appalling piece of drafting. The sections provide for a summary review of alcohol-licensed premises that are believed to be associated with serious crime and/or disorder. An application for summary review sets in motion a chain of events, the principal links of which are: (1) the licensing authority must decide within 48 hours of receipt of the application whether it is necessary to take any of the interim steps given by section 53B; and (2) the authority must review the licence in accordance with section 53C within 28 days of receipt of the application.
The wording of section 53B(1) is important: it provides that the authority must decide whether to take interim steps 'pending the determination of the review applied for', namely, the review under section 53C. When one turns to section 53C itself, one finds at 53C(11) that: 'A decision under this section does not have effect until '“ (a) the end of the period for appealing against the decision, or (b) if the decision is appealed against, the time the appeal is disposed of.'
The powers of a magistrates' court on such an appeal are given by section 181 of the Licensing Act, and include a power to remit the case to the licensing authority to dispose of in accordance with the direction of the court. The district judge's ruling requires an interpretation of section 53B in which a review may be said to have been 'determined' notwithstanding that it may yet, on appeal, be remitted to the same licensing authority for a wholly different decision to be taken on it. That interpretation flies in the face of the plain words of the Act.
Fairness
There has been much comment about the potential for unintended injustice/unfairness if the DCMS interpretation of sections 53A, B and C is correct. Suppose, for example, the interim step is taken to suspend the licence, but at the section 53C review it is decided that the licence may remain in force, and some modification of the conditions is all that is necessary. It is very unfair that an appeal against one of those conditions should trigger the retention of the suspension until the appeal is disposed of. Furthermore, it is unlikely that that could have been the intention of parliament.
But injustice/unfairness can just as easily operate the other way round. For example, suppose a badly run night club has its licence suspended as an interim step under section 53B; on the 53C review the licence is revoked '“ let us assume an extreme case, and say that the licensee does not even defend the review. Does the licence spring back into life if the licensee launches an appeal against the revocation? Can the night club reopen the same day as the licensing authority decides to revoke it? It would be absurd if it could in all cases, no matter how serious '“ but that consequence is implicit in the decision of the district judge. Even more absurdly, since the review decision does not take effect until the end of the period for appealing against it, the district judge's decision seems to create a de jure 21-day resuscitation of the licence, whether the licensee appeals the review decision or not.
Lamentably missing from the legislation is any discretion in the licensing authority to revisit the interim steps and decide, having regard to the licensing objectives, what, if any, of them should remain in force pending an appeal against their section 53C review decision. But that discretion needs to be given by parliament, and is nowhere to be found in the current regime. The police in Oates did themselves no favours by arguing the overall merits of their case '“ namely, that in the circumstances (there had been three suspensions of the licence) it would be wrong for the licence to be resuscitated pending appeal. By so doing, they opened the door on the consideration of overall fairness, and an HRA article 6 submission '“ a battlefield on which the police lost. They should have held fast to the fact that the Act, as drafted, is perfectly clear that the position is identical in all cases, whether that is fair or unfair, and that any resulting injustice must be corrected by statutory amendment.
The wording of section 53A-C does not allow one to pick and choose when the interim steps continue in force, and when they do not. The sooner that wording is amended, however, the better.