Chief Constable of Nottinghamshire Police v Nottingham Magistrates' Court

The Licensing Act 2003 confers no express or implied right on a responsible authority or interested party, previously heard by a licensing authority, to appear or be represented on an appeal to magistrates. The statutory appeal scheme and repeal of the former right of objectors to appear are significant.

Magistrates nevertheless possess an implied procedural power to permit participation where necessary to achieve a fair determination and further the licensing objectives. The power is subject to control of duplication, cost, time and effort. A refusal based on the mistaken view that Schedule 5 prevents participation is unlawful and should be quashed and reconsidered.

The Chief Constable challenged the refusal of a District Judge to join the police as a party to Tesco’s appeal against conditions attached to a premises licence under the Licensing Act 2003. The police had made representations before the licensing subcommittee and had successfully sought the conditions. Tesco appealed under section 181 and Schedule 5.

The District Judge considered that Schedule 5 constrained his power to permit the police to appear, although he recognised that fairness might favour their participation. The central issues were whether the police had a statutory right to appear on the appeal and, if not, whether magistrates had power to permit their representation and evidence.

1. Judicial review allowed. The District Judge’s decision was quashed and the question whether the police should be represented was remitted to the magistrates for reconsideration. The Chief Constable received costs of £15,140.
2. The statutory scheme did not confer an express right on a responsible authority or interested party to appear as a respondent on an appeal. Schedule 5 identified the parties to particular appeals, and the licensing authority was the respondent under the procedural context supplied by the Magistrates’ Courts Act 1980 and the Magistrates’ Courts Rules 1981. The repeal of section 22(3) of the Licensing Act 1964, which had given objectors a right to appear, reinforced that conclusion.
3. The appeal was a rehearing or hearing de novo, but that did not itself create a right of participation for those who had appeared below.
4. There was no free-standing inherent jurisdiction in a statutory court. The magistrates’ power to regulate participation was instead implied by the statute, so far as necessary to fulfil its objectives fairly and effectively. That included permitting a responsible authority or interested party to appear, be represented and call evidence where the statutory function required it.
5. In exercising that power, magistrates had to balance a fair resolution in furtherance of the licensing objectives against duplication of argument, unnecessary cost, time and effort, and the burden on the licence applicant. Licensing appeals were directed to the public benefit and were not ordinary adversarial litigation between parties.
6. The District Judge had misdirected himself by treating Schedule 5 as a constraint on the implied statutory power. The court did not determine that representation of the police was necessarily required. The issue was remitted for a fresh decision.

This was a judicial review of a District Judge’s refusal to join the police as a party to an appeal before Nottingham Magistrates’ Court. The Divisional Court quashed that decision and remitted the representation question to the magistrates.