Hope and Glory Public House Ltd, R (on the application of) v City of Westminster Magistrates Court & Ors

A statutory licensing appeal to a magistrates’ court is a rehearing on the full material before the court. The court must nevertheless pay careful attention to the licensing authority’s reasons. Their weight depends on their fullness and clarity, the nature of the issues and the evidence on appeal.

The appellant bears the responsibility of persuading the court that the authority’s decision was wrong. This does not restrict the appeal to judicial review grounds. The magistrates may examine the merits, consider points of law and, where appropriate, remit the case with directions.

A licensing sub-committee reviewed a public house’s premises licence under the Licensing Act 2003 after complaints about noise from customers drinking outside. It found a serious public nuisance and imposed conditions, principally prohibiting customers from taking drinks outside in open containers after 6 pm.

On appeal, the district judge reheard extensive evidence but directed himself that he should pay attention to the sub-committee’s decision and reverse it only if satisfied that it was wrong. He found the conditions necessary and proportionate and dismissed the licensing appeal. Burton J refused permission to seek judicial review.

The Court of Appeal considered the weight a magistrates’ court should give the licensing authority’s reasons, whether the appellant bore responsibility for showing that the decision was wrong, and whether that approach complied with article 6 of the European Convention on Human Rights.

1. Appeal dismissed. The district judge correctly directed himself that he should pay attention to the licensing authority’s decision and allow the appeal only if satisfied that it was wrong. After hearing the evidence, he was entitled to conclude that the authority’s decision was right.

2. A magistrates’ court hearing a statutory licensing appeal must pay careful attention to the licensing authority’s reasons. Parliament entrusted licensing decisions to local authorities, whose decisions involve administrative judgment about the public interest. The appropriate weight cannot be prescribed formulaically. It depends on the fullness and clarity of the reasons, the nature of the issues and the nature and quality of the evidence on appeal.

3. Licensing questions commonly require an evaluation of competing interests. Even an apparently factual question, such as whether noise amounts to public nuisance, requires an assessment of what is reasonably acceptable in the locality. Selecting conditions which are necessary and proportionate to promote the licensing objectives is essentially a matter of judgment.

4. The appeal remains a rehearing at which the parties may call evidence and the magistrates decide upon the full material before them. The appellant nevertheless bears the ordinary responsibility of persuading the court to reverse the order under appeal. “Wrong” does not mean unreasonable on judicial review principles. It requires the magistrates, after considering the evidence and addressing the decision below, to conclude that the decision should not stand.

5. The approach was compatible with article 6. The appeal afforded adequate independent judicial scrutiny of the administrative determination of the licence-holder’s civil rights.

6. Obiter, the court doubted the district judge’s view that defects in the authority’s legal approach or procedure could be challenged only by judicial review. The Licensing Act 2003 contains no express limitation of that kind. Section 181(2), including the power to remit with directions, provides a natural remedy for an error of law. The point had not been argued and did not affect the outcome.

1. Court of Appeal (Civil Division): By [2011] EWCA Civ 31, dismissed the appeal and upheld the district judge’s approach. It also refused permission to introduce fresh evidence.

2. High Court, Administrative Court: Burton J refused permission to apply for judicial review of the district judge’s decision on 21 July 2009.

3. City of Westminster Magistrates’ Court: The district judge reheard the licensing appeal, found that public nuisance was established and that the conditions were necessary and proportionate, and dismissed the appeal.

4. Westminster City Council Licensing Sub-Committee: On reviewing the premises licence, found serious public nuisance and modified the licence conditions.