Boyle, R (on the application of) v Haverhill Pub Watch & Ors

A decision by a private association is amenable to judicial review only where the power or function exercised has a sufficient public element, flavour or character. Individual publicans retain the private-law right to exclude persons from their premises and may organise collectively to share information and co-ordinate exclusions. Police encouragement, administrative assistance and attendance at meetings do not, without more, convert that private activity into a public function. The analysis is fact-sensitive: a different result may follow where public authorities exercise a substantially greater role, impose participation, or provide the operative power.

The claimant sought judicial review of Haverhill Pub Watch’s decision to extend for two years a ban preventing him from entering participating licensed premises. The issues were whether Haverhill Pub Watch had capacity to be sued, whether it was amenable to judicial review or exercised functions of a public nature under section 6(3)(b) of the Human Rights Act 1998, and whether the ban-extension process was procedurally unfair or affected by bias.

The scheme involved local licensees sharing information and making collective banning decisions. Police and local-authority personnel encouraged and supported the scheme, but the judge found that licensees retained the decision-making power. The central question was whether the particular decision had a sufficient public element to fall within public law.

1. Capacity. The capacity issue did not determine the case. An unincorporated association has no legal personality, but proceedings can be brought through a representative defendant under CPR 19.6 or against the individual or corporate owners responsible for the relevant acts. Courts will generally find a practical route to join parties where justice requires it.
2. Amenability to judicial review. Applying the approach in R (Beer) v Hampshire Farmers’ Market Ltd [2003] EWCA Civ 1056, the court had to examine the nature of the power and function exercised and ask whether it possessed a sufficient public element, flavour or character. The fact that a public authority could perform an activity is relevant but not conclusive, consistently with YL v Birmingham City Council [2007] UKHL 27.
3. The power to exclude persons came from the individual licensees’ private rights over their premises. Pub Watch merely enabled them to share information and make exclusions more organised. The borough council’s licensing role and general encouragement did not alter that character. The town clerk participated as a licensee, not as an exercising public authority.
4. Police involvement was limited to encouragement, advice, administrative assistance and logistical support. Police officers did not propose or vote on bans, and licensees could decline membership, fail to attend meetings or disregard a ban. Such support for a community crime-prevention scheme did not convert the licensees’ private decisions into public functions. The claim therefore fell outside judicial review and section 6(3)(b) of the Human Rights Act 1998.
5. The court did not express a view on the allegations of bias or determine the detailed fair-hearing complaints, since the claim failed on reviewability. The court observed that schemes with a materially greater role for police or other public bodies might require a different analysis, but declined to generalise about Pub Watch schemes nationally.
6. Judgment was entered for the defendant. The claimant was ordered to pay one set of costs to be shared by the interested parties, together with the defendant’s out-of-pocket expenses, with £10,000 payable on account subject to permission to apply.

First-instance judicial review proceedings. Permission was initially refused on the papers by Mitting J but granted on renewal by Simon J on 26 January 2009. The substantive claim was dismissed by the High Court (Administrative Court).