London borough defeats legal challenge to use of remote licensing hearings

A Magistrates' Court has ruled that neither the Licensing Act 2003 nor the Licensing Act (Hearings) Regulations 2005 require hearings to be held in a physical "place", in a case that challenged the London Borough of Lewisham's use of a remote hearing procedure to revoke a premises' license.

District Judge Abdel Sayed, sitting at Bromley Magistrates’ Court, dismissed a nightclub owner's appeal of the council's decision to revoke the premises license in what is thought to be a first-of-its-kind ruling.

Matt Lewin of Cornerstone Barristers, who acted for the council, reported that the district judge found that remote hearings are permitted under the relevant legislation and that, in principle, a "place" for the purposes of the Hearings Regulations 2005 can include a "virtual platform" and "attendance" at such a hearing can include "electronic attendance".

In an update from Cornerstone Barristers, Lewin also reported that the judge concluded that: "Section 9(3) of the Licensing Act 2003 allows licensing committees – subject to the basic procedural framework in the Hearings Regulations – to regulate their own procedure. Whether a hearing is conducted in person, or remotely, is 'a matter of procedure' and therefore something the licensing committee may opt for in its discretion."

Lewin added: "The ruling in R (Hertfordshire County Council) v Secretary of State for Housing, Communities and Local Government [2021] EWHC 1093 (Admin) applied only to ordinary meetings of local authorities; it did not apply to hearings conducted under the Licensing Act 2003."

In R (Hertfordshire County Council) v Secretary of State for Housing, Communities and Local Government, Dame Victoria Sharp and Mr Justice Chamberlain concluded that the Secretary of State was correct to say that primary legislation would be required to allow local authority "meetings" under the Local Government Act 1972 Act to take place remotely.

Finally, Lewin noted that the judge found the fact that the Welsh Senedd had legislated for remote hearings in Wales simply clarified any "ambiguity" in the Licensing Act 2003 and Hearings Regulations about whether remote hearings were lawful. It did not follow from the Welsh legislation that the legislation applying in England prohibited remote hearings.

District Judge Abdel Sayed’s judgment is not technically binding on any other case, as it is a decision of the Magistrates' Court.

It is currently the only case that has considered the issue and is therefore persuasive authority, Lewin said. “It remains to be seen whether the High Court will be asked to give a definitive ruling on this important issue.”

Lewin said the key lesson for licensing authorities was on the need for clear ground rules to ensure that any remote hearing takes place fairly and without any doubt as to its validity.

He recommended that a licensing authority opting for remote hearings should have in place a remote hearings protocol, which sets out (as a minimum):

• Who decides whether the meeting takes place in person or remotely and any criteria used to inform that decision?
• How is a “remote hearing” defined?
• What constitutes valid attendance by members of the committee, parties to the hearing, officers and members of the public?
• How will access to the hearing by members of the public be ensured?

Adam Carey

Cornerstone Barristers will host a 45 minute webinar, led by Matt Lewin, on the implications of this decision on Wednesday, 3 May 2023 at 10am. The set said the webinar will address what the judgment says and will outline what licensing authorities need to do if they opt for remote hearings. It will be of particular interest to both public and private sector licensing teams, Cornerstone added.