R v Stafford Crown Court, Ex parte Shipley (Shipley, Ex parte)

A special hours certificate under the Licensing Act 1964 does not merely add late-night drinking hours to general licensing hours. On each day to which it applies, the special-hours regime supplies the permitted hours in substitution for the general regime. The sale of liquor must therefore, on the whole, be ancillary to the required music and dancing or substantial refreshment throughout those hours.

Sections 78A and 81A authorise licensing justices to limit a certificate to particular times of the day. That power includes fixing an opening time as well as a closing time. The discretion must be exercised consistently with the policy and objects of the Act.

The appellant held a justices’ on-licence for a public house and applied for a new special hours certificate. Cannock Licensing Justices granted the certificate for specified days, subject to a 7 pm commencement and a midnight end time.

Stafford Crown Court dismissed the appellant’s statutory appeal, holding itself bound by an earlier decision that licensing justices could impose such a commencement limit. Keene J then dismissed an application for judicial review on 16 December 1996.

The appellant appealed to the Court of Appeal. The central issues were whether sections 78A and 81A of the Licensing Act 1964 permitted an opening-time restriction and whether sales had to be ancillary to entertainment and refreshment throughout a day on which the certificate operated.

1. Appeal dismissed unanimously. Henry LJ gave the principal judgment. Auld LJ agreed. Simon Brown LJ agreed in a separate concurring judgment. The Crown Court had lawfully upheld the 7 pm commencement restriction.

2. The statutory scheme distinguished true extensions to general licensing hours under sections 68 and 70 from the special-hours regime. A special hours certificate had historically supplied a separate and substituted set of permitted hours. The 1988 amendments did not convert it into a bolt-on addition to section 60 general licensing hours. Sections 76(4) and 76(6), the structure of Part III, and the continuing requirements in section 77 all supported that construction. The court regarded the observations in Carter v Bradbeer [1975] 1 WLR 1204 as persuasive confirmation, although they were obiter.

3. Sections 78A and 81A expressly permitted limitations to particular times of the day. In their statutory context, those words authorised limits on both the beginning and the end of the special-hours period. Section 76(2)(c), despite its language concerning hours not extending beyond a specified time, did not cut down that broad power. The discretion was unfettered by statutory criteria but had to be used to promote the policy and objects of the Licensing Act 1964. The police objective of preventing ordinary public houses from operating as late-night drinking premises was within that policy.

4. On a day when the certificate operated, it alone governed the permitted hours. A licensee could not rely concurrently on section 60 and the on-licence to justify non-ancillary sales during earlier hours. The phrase in section 81(2) concerning sales lawful “by virtue only” of the certificate confined the relevant revocation ground to conduct under the special-hours regime; it did not preserve parallel general licensing hours. Accordingly, throughout the certificate’s permitted hours, drinking had to be ancillary, on the whole, to the required entertainment or substantial refreshment.

5. The appeal was dismissed with costs. Leave to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division): dismissed the appeal in [1997] EWCA Civ 2978.

• Queen’s Bench Division (Crown Office List): Keene J dismissed the application for judicial review on 16 December 1996.

• Stafford Crown Court: dismissed the appellant’s appeal on 31 May 1996 from the licensing justices’ decision.

• Cannock Licensing Justices: granted a special hours certificate on 4 December 1995, limited to a 7 pm start and midnight finish on the specified days.