Pub company fails in High Court appeal over revocation of licence for Covid regulation breaches

Stockton-on-Tees Borough Council was entitled to revoke the licence of a pub that stayed open in breach of pandemic-era regulations, the High Court has ruled.

In The Porky Pint Ltd v Stockton On Tees Borough Council [2023] EWHC 128 (Admin) Mr Justice Fordham said the Porky Pint must pay the council’s costs of almost £11,000 from two hearings.

The appeal came to the High Court by way of case stated from Teesside Magistrates' Court as to whether District Judge Hood’s adjudication was wrong in law.

Three questions were put to the High Court: was he right to consider matters of public health when considering the four licensing objectives at section 4(2) Licensing Act 2003; was he right to take into account behaviour which did not result in a criminal prosecution for the purposes of determining an appeal against revocation of a premises licence; was he right to conclude that the pub's director and designated premises supervisor, Paul Henderson, had no lawful right to withhold CCTV footage on request by the council?

Fordham J found DJ Hood had been right on all three counts and that Porky Pint’s licence was lawfully revoked.

Stockton’s licensing committee heard evidence in support of the director and also took account of the pandemic in the area at the time.

It concluded: “This was a case where revocation of the premise licence was a necessary and appropriate sanction”, the court heard. A later appeal was dismissed.

In October 2020, Stockton-on-Tees came within the Tier 2 Covid-19 regulations, which meant meetings of two or more persons were prohibited indoors but there was an exception for a wedding reception of not more than 15 people.

The next month regulations tightened and pubs were allowed to sell food and drink only off the premises.

Complaints were made to the council about a lack of pandemic control measures at the pub and about a wedding reception for 30 guests.

Even after the tighter rules were applied in November 2020, the Porky Pint was found open with alcoholic drinks on sale and one was offered to a council officer.

Police said they found Mr Henderson obstructive to officers and he told them he didn't believe in coronavirus. A prohibition notice was then issued.

in January 2021, Mr Henderson advertised the re-opening of his premises and told a licensing officer he disbelieved official statistics, the honesty of the Government and validity of the pandemic.

The next month a licensing officer asked for CCTV from the Porky Pint and Mr Henderson refused.

Fordham J said licensing objectives were not restricted to ‘alcohol-related' matters and were “plainly capable of overlapping” he said that even though ‘public health’ was not a licensing objective its overlap with ‘public safety’ was apparent.

“Put another way, the fact that ‘public health’ is not present as a licensing objective does not 'strip out' anything which could be said to be ‘public health' from what properly falls within ‘public safety’”, Fordham J said.

He found no error in DJ Hood’s reasoning relating to ‘public health’, as given the term’s ordinary meaning, “there was nothing incorrect – still less unreasonable or unjustified – in the judge concluding, as the committee had before him, that this licensing objective was engaged and relevant”.

Fordham J rejected the claim that Mr Henderson’s human rights had been infringed and said: “It is very clear that the prohibited conduct did not constitute a deprivation of A1P1 possessions. ‘

Mr Henderson argued there was no requirement for him to provide CCTV to the council or police as the licence only requires service of CCTV in cases of serious crime as defined by the Regulation of Investigatory Powers Act 2000.

The judge said it was clear the 2003 Licensing Act used the phrase "serious crime” and provided this had the same meaning as in the Regulation of Investigatory Powers Act 2000.

He upheld DJ Hood’s ruling there was no need for serious crime to be established for the authorities to request the CCTV, having found as a fact that Mr Henderson had refused to provide the CCTV on an ongoing basis and despite numerous requests.

Mark Smulian