Walk Safe Security Services Ltd v London Borough of Lewisham

Licensing hearings under the Licensing Act 2003 and the Licensing Act (Hearings) Regulations 2005 may, in principle, be held remotely in England. “Hearing” can include a remote hearing, and “place” does not necessarily require a single physical location. Licensing committees have broad procedural flexibility under section 9(3) of the 2003 Act and regulation 21, subject to the Regulations. Particular arrangements may nevertheless be unlawful if they cause procedural unfairness or substantial disadvantage.

The appellant held a premises licence for a nightclub. The respondent licensing authority conducted licensing hearings remotely and, following summary reviews and a premises-licence review, revoked or modified the licence.

On appeal to Bromley Magistrates’ Court, the appellant raised the preliminary issue whether remote licensing hearings were lawful. The District Judge answered yes and stated a case for the High Court. The central question was whether remote hearings were lawful under the Licensing Act 2003 and the Licensing Act (Hearings) Regulations 2005.

1. Appeal dismissed. The question stated was reformulated and answered affirmatively: licensing committees in England may hold licensing hearings remotely under the Licensing Act 2003 and the Licensing Act (Hearings) Regulations 2005.
2. When construing secondary legislation, the court determines the intention reasonably attributable to the person who made the instrument from the words used. Welsh amendments made by Welsh Ministers had no direct relevance to the intention attributable to the Secretary of State when making the English provisions. They were relevant only as comparative drafting examples and carried limited weight.
3. The term “hearing” is capable of including a remote hearing. The English Regulations refer to the “place” of a hearing, but do not define it or require a single geographical location. An online platform can therefore constitute a place.
4. The reasoning in R (Hertfordshire County Council) v Secretary of State for Housing, Communities and Local Government concerning meetings under the Local Government Act 1972 was not determinative. Licensing hearings are governed by a distinct statutory regime and are not part of the mechanism of government of the country.
5. Section 9(3) of the 2003 Act and regulation 21 confer substantial procedural flexibility on licensing committees, subject to the Regulations. The question is whether remote hearings are prohibited, not whether they are expressly authorised. The Regulations contain no clear prohibition.
6. Remote hearings are not inherently incompatible with Convention rights. A particular hearing may be unlawful if its arrangements cause unfairness or substantial disadvantage. The guidance concerning remote communication when no formal hearing is required did not determine the statutory construction.

The appeal was brought by case stated from a decision of District Judge Nermine Abdel Sayed at Bromley Magistrates’ Court. The District Judge had held that remote licensing hearings were lawful and stated a case for the High Court. The High Court reformulated and answered the question affirmatively, dismissing the appeal.