Appeals under the 2003 Act

Roy Light considers three procedural matters that are sometimes raised when magistrates' courts hear appeals under the 2003 Act.

Notice of appeal

How should an appeal be commenced and, in particular, is it necessary for the appellant to draft full grounds of appeal within the notice? The Act is silent on the matter s.181(1) simply providing that: ‘Schedule 5 (which makes provision for appeals against decision of licensing authorities) has effect.

Similarly, Schedule 5 para.1 states simply ‘Where a licensing authority (a) rejects an application for a premises licence under s.18 … the applicant may appeal against the decision’. Paragraph 9(2) provides that ‘An appeal under this Part must be communicated by notice of appeal given by the appellant to the [designated officer] within the period of 21 days beginning with the day …’

There is nothing in s.181 or Schedule 5 (or the regulations/DCMS Guidance) which requires grounds of appeal to be given, simply a notice of appeal. However, a Respondent may justifiably request further information on the grounds upon which the appeal is based: rather than simply accept a bald statement such as ‘the decision was wrong and against the weight of evidence’. This should allow the respondent to understand better the nature of the challenge to its decision and the exercise may well concentrate the mind of the Appellant as to the strength of its appeal.

However, while a refusal by the appellant to supply grounds may affect adversely any later claim for costs it does not seem that an appellant can be compelled to do so; although a request may be made at a pre-trial review for directions to include the giving of grounds for the appeal.

Review or rehearing?

An attempt (not pursued) has been made by a respondent in a recent appeal to rely on the words in the DCMS Guidance arguing that ‘the purpose of this appeal is to “review the merits of the decision”’. This misquotes the Guidance, seeks to put an absurd interpretation on the words and attempts to limit the Appellants’ right of appeal and the jurisdiction of the Court. The Guidance states ‘The court, on hearing any appeal, may review the merits of the decision on the facts and consider points of law’ (paragraph 12.6; emphasis added). The word is ‘may’ not must or should only.

The argument that the appeal is limited to a rehearing is obviously wrong as it would mean that the Court would have to look at the matter as it was before the licensing authority. It would require the Court to ignore any additional evidence put forward by either the Appellant or Respondent and also to ignore any change of position by the Appellant, interested parties or responsible authorities.

In any event, it is settled law that the appeal is not a review but a rehearing (R(Chief Constable of Lancashire v Preston CC [2001] EWHC Admin 928). This was accepted by both parties in that case and recently upheld in R (on the application of Hope & Glory Public House Ltd) v City of Westminster Magistrates’ Court [2009] EWHC 1996 (Admin) (para.29). The court may review the merits of the decision on the facts and also consider points of law (as they are presented to the Court on the day). The court will consider the matter as if it was ‘standing in the shoes’ of the licensing authority.

While it is settled law that the Appeal is by way of a rehearing (Sagnata Investments Ltd v Norwich Corporation [1971] 2QB 614) and the magistrates’ court must exercise its own discretion ‘That does not mean that the court of appeal, in this case the metropolitan magistrates, ought not to pay great attention to the fact that the duly constituted and elected local authority have come to an opinion on the matter and ought not lightly, of course, to reverse their opinion. It is constantly said (although I am not sure that it is always sufficiently remembered) that the function of a court of appeal is to exercise its powers when it is satisfied that the judgment below is wrong, not merely because it is not satisfied that the judgment is right’: Stepney Borough Council v Joffe [1949] 1KB 599; quoted with approval in Sagnata at 637. But what does that mean in practice? This was considered in the Hope & Glory case

What the appellate court will have to do is to be satisfied that the judgment below “is wrong”, that is to reach its conclusions on the basis of the evidence before it and then to conclude that the judgment below is wrong, even if it was not wrong at the time (para.43).

It is therefore open to a magistrates’ court to conclude that while the decision of the licensing committee was not wrong when it was made, on the basis of the case before the committee at the time, it was wrong on the basis of the case before the magistrates at the appeal.

A new application necessary?

An appellant might modify his application between the original hearing and the appeal to increase the likelihood of a successful outcome to the appeal. For example, a reduction in the hours sought or the types of licensable activities applied for. It has recently been argued that such an approach would require the withdrawal of the appeal and the submission of a new application. There is no authority to support such an approach and it is contrary to the spirit of the Act which is one of mediation and development of applications as the process proceeds. Before an application is submitted it may be modified to meet representations.

At a licensing authority hearing an application may be modified to meet representations and evidence and a limit placed on a grant by way of, for example, shorter hours, fewer licensable activities or extra conditions. This same process takes place between a hearing and an appeal where, if agreement can be reached between the parties, a consent order may be put before the Court. The process continues at the Court where a more limited licence may be proposed or the Court may allow an appeal but grant a more limited licence.

Roy Light is a barrister practising from St John’s Chambers, Bristol and professor of law, Bristol Law School.