Westminster City Council, R (on the application of) v Metropolitan Stipendiary Magistrate & Anor

Where a licensing decision is based on an interlocking set of conditions, defects in the drafting of individual conditions do not necessarily require the decision itself to be quashed. The court should ask whether excision or redrafting is so fundamental that the decision might have been different. Conditions attached to a licence carrying criminal penalties must be reasonably certain, so that the licensee, enforcement authorities and affected persons can understand what is required. Conditions which are capable of improvement should ordinarily be redrafted rather than struck down. A court may remit conditions for reconsideration while leaving the underlying licence variation intact.

Westminster City Council sought judicial review of a decision by District Judge Roscoe allowing Marc Merran’s appeal against the deemed refusal of an application to extend the operating hours of a nightclub. The appeal had been allowed subject to thirteen conditions directed to the licensing objectives of preventing crime and disorder, securing public safety and preventing public nuisance.

The Council argued that several conditions were uncertain or unenforceable and that the district judge had not given adequate opportunity to address their detailed wording. The central issues were whether defects in the conditions undermined the decision to allow the licence variation and what form of relief was appropriate.

1. Permission and relief. Permission was granted. The licence variation was not quashed. The conditions were remitted to the district judge for reconsideration, including further consideration of the winding-down provisions and the proposed presence of high-visibility security staff outside the premises.

2. Severability. The district judge had treated the conditions as an interlocking set. The decision could not be read as depending principally on any single condition. Applying the approach in R v North Hertfordshire District Council ex parte Cobbold [1985] 3 All ER 486, the question was whether excision or redrafting was so fundamental that the decision might have been different. That threshold was not met. The licensing objectives could still be promoted by conditions of the kind proposed.

3. Certainty. Licensing conditions are enforceable and breach may attract a substantial fine or imprisonment under Licensing Act 2003, section 136(4). They must therefore be reasonably certain. The test in Crawley Borough Council v Attenborough [2006] EWHC 1278 (Admin) applied: the document must make clear what the licence and its conditions mean. Several conditions required redrafting, including the prohibition on drinks promotions, the restrictions on entry, and the wording concerning assistance with vehicles.

4. The looser approach applicable to uncertain by-laws, discussed in Fawcett Properties Limited v Buckingham County Council [1961] AC 636, was not appropriate for licensing conditions carrying criminal penalties. The statutory guidance issued under Licensing Act 2003, section 182, was capable of departure in appropriate circumstances. The district judge had not acted irrationally in requiring a bar to remain open until 5.00 am and imposing a winding-down period.

5. The winding-down provisions were necessarily imprecise but were not worthless or incapable of enforcement in cases of flagrant breach. Their final form should be reconsidered. The condition concerning high-visibility security staff raised unresolved public-order issues which should be addressed by the district judge after submissions, including from the police.

6. The premises remained subject to the existing conditions pending reconsideration. The claimant was ordered to pay 50 per cent of the interested party’s costs, subject to detailed assessment if not agreed. Permission to appeal was refused.

• Magistrates’ Court: District Judge Roscoe allowed the interested party’s appeal against the deemed refusal of the licence variation, subject to thirteen conditions.
• High Court (Administrative Court): The conditions were remitted for reconsideration, but the underlying licence variation was left intact.