Akin v Stratford Magistrates Court

Procedural requirements in a statutory licensing scheme are not automatically jurisdictional conditions merely because the scheme is described as a complete code. Where legislation does not specify the consequence of non-compliance, the court should consider substantial compliance, waiver where relevant, and the legislative purpose as a whole. A licensing review notice may substantially comply despite omitting factual grounds if it identifies the review, relevant licensing objectives and how further information may be inspected. The omission does not invalidate the review without material prejudice.

The appellant challenged the dismissal by Stratford Magistrates' Court of his procedural appeal against the revocation of his premises licence by Hackney London Borough Council's licensing sub-committee. The challenge concerned a notice advertising a police application under section 51 of the Licensing Act 2003. The notice identified the licensing objectives but omitted the factual grounds of review required by regulation 39(c) of the Licensing Act 2003 (Premises Licences and Club Premises Certificates) Regulations 2005. The central issues were whether the licensing legislation formed a complete code excluding the modern approach to procedural irregularity, and whether the omission invalidated the review or caused prejudice.

1. Application dismissed. The modern approach to statutory procedural irregularity applied to the Licensing Act 2003 and the 2005 regulations. Describing the statutory scheme as a complete code did not exclude that approach where the legislation left the consequences of a particular procedural failure unstated.
2. The court applied the approach in R v Secretary of State for the Home Department ex parte Jeyeanthan [2000] 1 WLR 345. The relevant questions were whether there had been substantial compliance, whether any non-compliance could be waived, and, if not waived, what consequence the legislature intended. The assessment required a purposive consideration of the statutory scheme as a whole.
3. The purpose of the advertising requirements was publicity, consultation and extending an opportunity to be heard to persons interested in the premises. The requirements were not principally intended to inform the licence-holder of the factual grounds, since the appellant had been served with the review application containing them. It was open to the District Judge to assess regulations 38 and 39 together and find substantial compliance. Four of the five matters required by regulation 39 were present, including the licensing objectives, appropriate publication and information about inspecting the grounds.
4. The omission of the factual grounds did not invalidate the review. There was no admissible evidence before the District Judge establishing prejudice. A later witness statement could not undermine the decision in judicial review proceedings, and the possibility that another person might have supported the appellant was insufficient. The notice had generated responses, and the appellant had participated fully in the review.
5. The court agreed with the reasoning and result in R (D&D Bar Services Limited) v Romford Magistrates' Court [2014] EWHC 344 (Admin). Permission to appeal was refused.

• Stratford Magistrates' Court: District Judge Radway dismissed the appellant's procedural appeal against the licensing sub-committee's revocation decision. The merits appeal later resulted in the revocation being set aside and a licence being substituted on restricted hours.
• High Court (Administrative Court): The Divisional Court dismissed the judicial review application and refused permission to appeal.