Khan v Coventry Magistrates' Court & Anor

An appeal to magistrates against a licensing authority’s decision under the Licensing Act 2003 is a fresh hearing. The magistrates are not confined to the grounds stated in the review application or to evidence available before the licensing authority. They may consider relevant evidence about events occurring before the application and after the authority’s decision, and may make any decision that the licensing authority could have made.

Fairness requires procedures ensuring that the licence-holder knows in advance the case and evidence to be addressed. That requirement does not restrict the magistrates’ jurisdiction to the original allegations, but late evidence may raise a separate procedural fairness concern.

The claimant operated a supermarket with an off-licence. Coventry City Council applied to the licensing committee for a review, alleging an underage sale and shortcomings in the management of the premises. The committee revoked the licence, and the claimant appealed to Coventry magistrates.

The magistrates dismissed the appeal after hearing evidence which included matters concerning HMRC investigations and alleged duty-unpaid alcohol. The claimant sought judicial review, arguing that the magistrates’ jurisdiction was confined to the grounds and representations before the licensing authority. The High Court claim was retained in the Court of Appeal after permission to appeal. The central issue was the scope of the magistrates’ jurisdiction on an appeal under section 181 of the Licensing Act 2003.

1. Claim dismissed. Lord Justice Moore-Bick gave the leading judgment. Lady Justice Black and Lord Justice Thorpe agreed. The magistrates did not exceed their jurisdiction, and their decision was not otherwise susceptible to challenge.
2. An appeal under section 181 and Schedule 5 of the Licensing Act 2003 is a fresh or complete rehearing. Section 181(2)(b), which permits the magistrates to substitute any decision that the licensing authority could have made, does not confine the grounds on which the decision may be based. The magistrates must consider the application by reference to the statutory licensing objectives, without being restricted by the procedural regulations governing a review under section 51.
3. The magistrates may therefore consider relevant evidence of events occurring before the review application and after the licensing authority’s decision. The material before them is not limited to the notice of application, the representations, or matters considered by the licensing authority.
4. Fairness nevertheless requires proper procedures in the magistrates’ court to ensure that both parties know in advance the case and evidence they must meet. The ability to call new evidence benefits both sides. The court expressed concern about the late notice of Mr Harwood’s evidence, but no formal complaint on that basis was made.
5. In any event, the magistrates did not base their decision on the allegation that duty had not been paid on alcohol. Their reasons substantially repeated the licensing authority’s concerns about poor management and the risk to crime prevention and the protection of young persons. The additional evidence did not affect the outcome. The claim for judicial review was dismissed.

• Court of Appeal (Civil Division): dismissed the judicial review claim and upheld the magistrates’ decision. [2011] EWCA Civ 751
• High Court of Justice, Queen’s Bench Division (Administrative Court): judgment under appeal, referred to as [2010] EWHC 2330 (Admin).