Court of Appeal delivers landmark ruling in Hope and Glory case

The Court of Appeal has handed down a landmark ruling on the approach a magistrates’ court should take to hearing an appeal from a decision of a licensing authority.

The long-awaited decision in Hope and Glory Public House Ltd, R v City of Westminster Magistrates Court & Ors [2011] EWCA Civ 31 has been hailed as being of major significance for licensing practitioners.

The appellant company owns a public house called The Endurance in Soho, London. A review of its licence was heard by Westminster Council’s licensing sub-committee after residents’ complaints about the level of noise caused by customers taking their drinks outside and congregating on the street during the evenings.

At a hearing in June 2008, the sub-committee decided to attach a number of conditions to the licence. The appellant appealed to the City of Westminster Magistrates Court, but this was dismissed by the district judge.

Hope and Glory Public House then applied for judicial review on various grounds. Its primary argument was that the district judge’s ruling about how he should approach the decision of the sub-committee was wrong in law.

The Court of Appeal considered three issues:

• How much weight the district judge was entitled to give to the decision of the licensing authority
• “more particularly”, whether he was right to hold that he should only allow the appeal if satisfied that the decision of the licensing authority was wrong
• Whether the district judge’s ruling was compliant with Article 6 of the European Convention on Human Rights (the right to a fair trial).

The court dismissed Hope and Glory’s appeal. On the first question, Lord Justice Toulson said: “It is right in all cases that the magistrates' court should pay careful attention to the reasons given by the licensing authority for arriving at the decision under appeal, bearing in mind that Parliament has chosen to place responsibility for making such decisions on local authorities.

“The weight which the magistrates should ultimately attach to those reasons must be a matter for their judgment in all the circumstances, taking into account the fullness and clarity of the reasons, the nature of the issues and the evidence given on the appeal.”

Turning to the second point, the judge said it was normal for an appellant to have the responsibility of persuading the court that it should reverse the order under appeal. “The Magistrates Court Rules envisage that this is so in the case of statutory appeals to magistrates’ courts from decisions of local authorities,” he added. “We see no indication that Parliament intended to create an exception in the case of appeals under the Licensing Act.”

Lord Justice Toulson said the Court of Appeal was impressed with a point made by counsel for the respondent and interested party that “in a case such as this, where the licensing sub-committee has exercised what amounts to a statutory discretion to attach conditions to the licence, it makes good sense that the licensee should have to persuade the magistrates’ court that the sub-committee should not have exercised its discretion in the way that it did rather than that the magistrates’ court should be required to exercise the discretion afresh on the hearing of the appeal.”

On the final issue, the judge said the court considered the form of appeal provided by s. 182 and schedule 5 of the 2003 Act “amply satisfies” the requirements of Article 6.

Gary Grant, a barrister and head of the licensing group at Ely Place Chambers, said: “This decision has – for the time being – laid to rest the conflicting views on the nature of a magistrates appeal hearing. The magistrates’ court does not start off completely afresh, with a blank slate, but instead should give some weight to the decision of the sub-committee.

“The onus is now on the appellant to show that the decision of the sub-committee ‘is wrong’ at the time of the appeal (rather than ‘was wrong’ at the time of the decision below – an important difference). Moreover the appellant must call his evidence first.”

Grant said time would tell whether the Hope and Glory decision would place a heavier burden on the appellant or in practice prove merely to be a matter of semantics.

“After all with a magistrates’ court often hearing different and more detailed evidence and arguments to that heard by the sub-committee, the court may not find it too difficult to conclude that the weight to be given to the earlier decision is minimal,” he argued. “Indeed it may only be in the truly borderline cases that the appellant will be put at any real disadvantage. I say for the ‘time being’ because consideration is being given to an appeal to the Supreme Court, I understand.”

John Gaunt of licensing solicitors John Gaunt & Partners said: “Although this was a clear clarification of the role and responsibilities of the magistrates’ courts on a licensing appeal, the decision will serve to make the position of an appellant – in pursuing its appeal – more difficult. We will not be able to argue quite so convincingly going forward that the appeal is a complete re-hearing de novo, as we may have sought to do in the past.”