Coronavirus restrictions and interim steps appeals

Birmingham Magistrates’ Court has this week (10 December 2020) dismissed appeals against interim steps taken by Birmingham City Council on summary reviews of two premises licences that arose out of trading in breach of restrictions imposed on the hospitality sector as part of the response to the Coronavirus pandemic. Charles Holland explains why.

The premises concerned were Nakira and La Reference (formerly Petite Afrique). Following summary review proceedings instigated by West Midlands Police, the Council revoked the licences of the premises on 23 and 26 October 2020 respectively, and each time under a review under s.53D of the Licensing Act 2003, took the interim step of suspending those licences until the revocations came into effect.

The decisions have been widely reported in the press.

Both premises appealed both the revocation and the imposition of the interim step.

At a hybrid hearing held at Birmingham Magistrates’ Court on 9 December 2020, the magistrates granted an application by the Police to participate in the appeals, and then went on to hear the appeals against the interim steps.

The appellants argued that although neither the Council nor the Court could look behind certificates given by a superintendent of the Police that the each premises were associated with serious crime within the definition of s.81 of the Regulation of Investigatory Powers Act 2000 (a jurisdictional requirement for an application for summary review), the Council could and should have asked itself whether the premises were indeed associated with serious crime, it being asserted that without such a finding there could be no interim steps. It was further asserted that - as a matter of law - the conduct complained of did not constitute serious crime.

On behalf of both the Council and the Police it was submitted that this conflicted with the authority of R. (oao Lalli) v. The Commissioner of Police for the Metropolis [2015] EWHC 14, where John Howell QC, sitting as a Deputy High Court Judge had held at [63]:

The fact (if it be the case) that the licensing authority does not itself consider that any reasons provided for giving the certificate establish that there is an association between the licensed premises and serious crime or serious disorder is not of itself necessarily decisive for any decision about interim steps or for the determination of the summary review itself. The licensing authority may consider interim steps are necessary or appropriate for the prevention of crime and disorder (which is one of the licensing objectives) given further information provided, or representations made, by the chief officer of police or, when determining the summary review, by others….

The Respondents further submitted that on the facts the Council was entitled to impose the interim step of suspension, and the decision was not wrong.

The appeals against the interim steps were dismissed. In a short reserved judgment, the lay bench held:

We find that the legal position regarding the validity of the certificates could not be scrutinised by the licensing subcommittee, or by this court. If their validity is to be questioned, that would have to be done by the higher courts.

We accept the decision of the licensing subcommittee in these two cases. They based their decision on a range of evidence and the licensing objectives. Therefore we uphold their decisions and dismiss the appeals. The interim steps will continue.

This is one of the first (if not the first) appeals on a summary review arising out of the pandemic. Whilst decisions of the magistrates’ court do not bind other courts (or licensing committees), this result is likely to be of interest to licensing practitioners. Each appeal is now anticipated to proceed to a full hearing some time the New Year.

Charles Holland is a Barrister at Trinity Chambers (Newcastle) and Francis Taylor Building (London). He represented West Midlands Police at the hearing on 9 December 2020.