When an Alcohol Licensing Decision is Wrong

PREMISES LICENSE DECISION IS WRONG?

GUIDANCE ON APPEALING AGAINST YOUR COUNCIL LICENSING COMMITTEE’S DECISION

Whether you are a license holder, a concerned member of the public or you are otherwise involved in the licensing process it can be a disconcerting experience to witness a decision made by your Council’s licensing committee that you are convinced is wrong.

Here the ‘ins’ and ‘outs’ of appeals are looked at in the context of premises licenses decisions. However, some of the guidance is of general application to other licensing appeals.

Do I Have A Right Of Appeal? What The Legislation Says

In relation to premises licenses people may appeal depending on who they are and the nature of the decision appealed against. The source of the legislation mostly is to be found in the Licensing Act 2003. To access this legislation free of charge, click here.

As an applicant you can appeal if:

• Your application for a licence is rejected;

• Your application for a variation of your licence is rejected in whole or in part;

• Your application to vary the licence so as to specify an individual as the premises supervisor is rejected;

• Your application to transfer a premises licence is rejected;

• The licensing authority issues a provisional statement (in relation to the construction, extension or alteration of proposed licensed premises);

• The licensing authority modifies the conditions of your premises licence (alters, omits or adds to conditions);

• The licensing authority determines an application for review of a licence;

As the holder of a premises licence you can appeal when:

• A decision imposes conditions;

• A decision excludes any licensable activity or involves a refusal to specify a person as a premises supervisor;

• A decision determines an application for the review of the licence;

People who make ‘relevant representations’ to a licensing authority also can appeal sometimes. Such people include ‘responsible authorities’ (mostly various public bodies) and ‘other persons’, including members of the general public, provided that their representations are not ‘frivolous’ or ‘vexatious’. If you fall into either class of person:

• You can contest the licensing authority’s grant of the license, or the authority’s decision to include or omit particular conditions, or the authority’s failure to exclude a licensable activity or its’ decision to specify a particular individual as the premises supervisor.

• You can contest in relation to applications to vary premises licenses, a licensing authority’s decision to allow an application, or to allow an application with or without modifications to conditions.

• You can contest the authority’s determination of an application for a review.

The police can also appeal against various decisions.

Who Do I Appeal To And How?

The Magistrates’ Court deals with premises license appeals. It has the power to:

• Dismiss the appeal;

• Substitute for the decision appealed against any other decision which could have been made by the licensing authority; or

• Remit the case to the licensing authority to dispose of it in accordance with the direction of the court; and

• Make such order as to costs as it thinks fit.

Under the Magistrates Court Act 1980 the appeal should be made to the Magistrates Court in the local justice area where the premises concerned are located. If you would like to access the 1980 Act for free, click here.

If you are unsure of the geographical location of the court you should appeal to, the clerk to the licensing committee may help you. Alternatively, ready access to court locations and other information can be found by clicking here.

However, do bear in mind that court fees are payable for appeals. In 2013 the fee for appealing to the Magistrates’ Court under the Licensing Act was increased to £400.

Appellants have 21 days from when the licensing authority’s decision is notified to them to present their notice of appeal, which should be addressed to the ‘designated officer’ acting for the licensing justices in the local justice area (normally ‘the Clerk to the Justices’). The 21 day time limit is strict – it cannot be extended.

No particular form of words is required in a notice of appeal provided it is clear which decision is appealed from, and what the identity is of the respondents. Additionally, the notice of appeal should be signed and also state that the appellant is making a ‘complaint’ for an order that the licensing authority be required to do something or refrain from doing something (i.e. the appellant should specify what the order is that he or she is seeking). This is because the Magistrates Court Rules 1981 state that any appeal against a local authority is by way of a complaint for an order.

As for the identity of ‘respondents’, in all cases the licensing authority will be a respondent and in some cases other persons should also be identified as respondents. Naturally, their addresses should be provided in the notice of appeal.

With a licensing appeal there is no prescribed form that appellants are obliged to use when they make a ‘complaint’ (i.e. present a civil appeal). However, some people find Form 98 provides a useful template that can be adapted, as circumstances require.

Although no particular form of words is required for an appeal, it is customary for ‘grounds of appeal’ to be stated. They might be brief and then expanded upon at a later stage, but the nature of the reasons why the decision is challenged should be reasonably apparent because otherwise delay and increased costs are likely to follow.

Most Magistrates’ Courts in licensing appeals now arrange for a directions hearing to take place at which orders are made for the management of the appeal. Although many such directions will concern routine matters such as deadlines and preparation and exchange of documents, directions can also be made that require an appellant to specify in advance the nature of the grounds of appeal; i.e. the matters that he says proves the appeal should be allowed. Moreover, even though on occasion there is no directions hearing which has made provision for such matters and the Magistrates’ Court will not prevent an appellant from challenging a decision on the basis of point not previously brought to the respondents’ attention, the Court can adjourn an appeal hearing in the interests of fairness and make an order of costs against an appellant in respect of the expense occasioned to the respondents by the adjournment.

On What Grounds Might My Appeal Be Allowed?

The legislation is silent as to the grounds on which an appeal may be allowed. However, a series of cases in the higher appellate courts have established a number of principles that govern this issue.

Whereas the higher appellate courts in licensing appeals require proof that the decision appealed from is wrong in law or in excess of jurisdiction, hence involve essentially a review of the licensing authority’s decision, the Magistrates’ Court has the power to re – hear the evidence or indeed hear new evidence and it should consider the merits of the matters that were decided by the licensing authority. Its’ power to allow an appeal therefore is not confined to circumstances in which the decision is wrong in law. An appeal therefore may be allowed on the basis of points about the facts or the law (or both). This can be beneficial to appellants who may wish to present new evidence and arguments on appeal. However, equally it can mean that the respondent defending the appeal may seek to rely on additional evidence, grounds, or arguments as to why the licensing authority’s decision is correct. ¹

Additionally, the Magistrates’ Court is not compelled to show deference to the decision of the licensing authority. The weight if any that the Court should attach to the authority’s decision is a matter for its’ judgment provided always it carefully examines the authority’s decision. When disposing of an appeal the weight the Court gives to the authority’s decision should depend on the fullness and clarity of the authority’s reasons, and the nature of the issues and evidence considered at the appeal. The outcome, then, should turn on whether in the Court’s opinion the authority’s decision is ‘wrong’ in a wider sense. ²

However, a slightly different approach is taken where the licensing authority decision involves an exercise of a statutory discretion such as the variation of licensing conditions. In such circumstances it is incumbent on the appellant to establish that the authority is wrong to have exercised its’ discretion as it did – the Magistrates’ Court should not consider the matter afresh.

With respect to matters that the Magistrates’ Court will consider when dealing with appeal obviously this will vary between cases and is fact – sensitive. However, it will always ask itself whether the licensing authority carried out properly its duty to perform its’ functions under the Licensing Act 2003 with a view to promoting the licensing objectives of:

• Prevention of crime and disorder;

• Public safety;

• Prevention of public nuisance;

• Protection of children from harm.

Naturally, the Magistrates’ Court will also have regard to evidence and arguments concerning whether the licensing authority had proper regard to its’ own licensing policy and any statutory guidance because the authority is obliged to consider such matters by the 2003 Act. If the authority departs from them, it must have good reason for doing so.