Summer-y Justice?

The heat went to the head in the High Court dealing with summary reviews, writes Rory Clarke.

In two cases over the summer the High Court granted injunctions staying the effect of interim steps imposed on a summary review of a premises licence. Readers will be familiar with the controversy over the effect of the interim steps in the summary review procedure set out in sections 53A-53C of the Licensing Act 2003. This has gone on since 2011 when DJ Knight declared in Oates that section 53C(2)(c) was “incapable of understanding by any human being”.

In R (Sarai) v LB Hillingdon the premises licence of the Victoria Public House was suspended at the interim steps stage and then revoked at the full review hearing. According to the approach taken in R (93 Feet East Ltd) v Tower Hamlets [2013] EWHC 2716, the interim steps remain in place until any appeal has been disposed of, therefore the premises should have stayed closed. But an application to the High Court produced an injunction which allowed the premises to reopen.

In an apparently copy-cat action, a similar injunction was obtained by the British Luxury Club in R (Tennic Ltd) v LB Camden. The injunction allowed the premises to open under its pre-review licensing conditions and hours pending appeal to the magistrates against the decision on review.

Licensing authorities will see this as a worrying development. There were serious issues at stake in both cases: the Victoria had been the subject of a drugs raid, with nine arrests; at British Luxury Club the police were concerned that a vicious attack on a bouncer had been deliberately targeted and might lead to further attacks. Yet in both cases the injunction was granted on the papers, without any consideration of the views of the licensing authority and the police.

The problem with this is that getting an injunction is often a good deal easier than getting it set aside. This is made worse during the High Court summer vacation because judges are in short supply, so just getting the matter listed can be difficult. Sadly not much has changed since Munby J’s resounding quotation from Magna Carta in R (Casey) v Restormel BC [2007] EWHC 2254. In Camden’s case it took a week to get the court to consider its views; with Hillingdon it was 41 days. That is a long time for a premises to operate unregulated after a senior police officer has certified it is associated with serious crime or disorder. This delay was not through want of effort by the authorities, but rather lack of court resources.

In both cases the injunctions were stopped as soon as the views of the licensing authority and the police were taken into account. In both cases permission to apply for judicial review was refused on the papers, meaning that the underlying claims were not arguable. This only highlights the concern over the time it took for a balanced consideration of the claims. A number of the judges dealing with these cases suggested that the meaning of the legislation needs further consideration in court, but ultimately these cases were not right on their facts for a test case. It is certain that this will not be the last time that this issue appears in the High Court.

Rory Clarke is a barrister at Cornerstone Barristers. He acted for the London Borough of Camden in the British Luxury Club case and for Tower Hamlets in 93 Feet East Ltd. Rory can be contacted on 020 7242 4986 or This email address is being protected from spambots. You need JavaScript enabled to view it..