Article authored by Gary Grant, Barrister, Francis Taylor Building

Introduction

Since the first pandemic lockdown in late March 2020, a number of police forces have applied for summary reviews where licensed premises have been found breaching Covid-related restrictions and regulations. Generally, these have followed instances of persistent, flagrant and deliberate breaches of Covid laws which have posed serious and ongoing risks to public health and safety. The use of these powers has met with some objections. The first cases to be considered in the magistrates’ court, by way of appeals against interim steps imposed pending appeal, were those relating to two Birmingham City Centre venues, “Nakira” and “Petite Afrique”. Those appeals were heard together in Birmingham Magistrates’ Court where Lay Justices gave a succinct judgment dismissing the appeals. (These cases were previously reported by the Institute of Licensing on 10 December 2020. The Appellants subsequently jointly invited Birmingham Magistrates’ Court to State a Case for the consideration of the High Court,an application which was dismissed by the magistrates’ court as “frivolous”).

On 13 January 2021, District Judge Deborah Wright, sitting at Ealing Magistrates’ Court, handed down a far more detailed judgment in the case of “The Office” dismissing, in the main, the arguments put forward by the licence holder who appealed the interim steps imposed pending appeal. The full case name is J & D Properties (London) Ltd (t/a “The Office”) -v- London Borough of Ealing and the judgment is here.

The case focuses on issues relating to scrutiny of the superintendent’s certificate, the propriety of imposing interim steps pending appeal, and which of the four licensing objectives are relevant to this determination.

Whilst no decision of a magistrates’ court is binding on any other court, or indeed a licensing sub-committee, the fully reasoned decision of the experienced District Judge will be of interest to all involved in licensing enforcement during the pandemic.

The case had a highly unusual procedural history which is explained below.

The Office: Summary Review Proceedings

The Office is a pub in Northolt, West London. Importantly, prior to June 2017 the pub had been operated by its landlord. However, he leased the premises to a new tenant who operated the pub from June 2017 right up until the date the summary review was launched in October 2020. During the first national lockdown, between late March and July 2020, the police and Council received regular reports that the pub, now operated by the tenant, was operating in flagrant and persistent breach of the lockdown restrictions. Following the end of the first national lockdown on “Independence Day” on 4 July, it operated, at various times, beyond its operating hours, in breach of the 10pm curfew, and in a COVID unsafe manner. On one occasion, in October, police found the premises still operating after hours at 1am and they witnessed loud music, singing and chanting coming from inside. The front door had been barricaded to prevent police entry. Similar behaviour was witnessed the following night. Police asked to be let inside. This triggered a male inside to threaten the officer as follows: “I’ll rip your f*****g nose off”. The pub was not, therefore, as inviting as so many other pubs who have abided by the Covid regulations to their operator’s extreme financial hardship. The pub’s operator (the tenant) bragged that he had “beaten the system” and was making “£6,000 a night” during his illegal openings.

In addition to the COVID breaches, residents had long complained that they suffered from serious noise nuisance as a result of the antics of the pubs customers. This had occurred both when the pub operated under the landlord (i.e. the previous operator) as well as under the stewardship of the current tenant. There had been some 98 noise complaints to the Council between 2014 and 2020.

The police launched a summary review under s.53A of the Licensing Act 2003 (“LA2003”). In response to the initial application, the licence was suspended as an interim step pending the full review hearing.

On the eve of the full review hearing before the London Borough of Ealing’s licensing sub-committee, the landlord applied for the premises licence to be transferred back to him from his offending tenant. Therefore, at the time of the hearing, the landlord was to be treated as if he were the licence holder since the transfer had immediate effect.

The landlord pleaded, and the Council’s licensing sub-committee accepted, that he was not to be held responsible for the Covid related licence breaches. After all, he was merely the landlord and not the operator over this period. As a result, the Council determined, it was inappropriate and disproportionate to revoke the premises licence. Instead they focused their main decision at the full review hearing on the persistent, long-standing and serious noise nuisance complained of by residents (it was so bad, that at least one resident complained of suffering mental health problems as a consequence).

At the full review hearing, the Council determined to reduce the licensing hours of the pub (and its outside area) and effectively barred the offending tenant from having any involvement in the pub in the future. This main decision does not come into effect until any appeal is determined or the 21 day time limit for appealing expires. Thus, the Council must go on to consider what, if any, interim steps should be imposed pending appeal. The Council decided to continue the interim suspension of the licence pending appeal, a more severe sanction than the main decision itself.

The operator appealed the full decision to the magistrates’ court. In addition they launched a separate appeal against the interim steps pending appeal pursuant to paragraph 8B of Schedule 5 to the Licensing Act 2003.

Appeals against interim steps pending appeal must be heard by the court within 28 days of the appeal being launched (although the statute does not say the Court must determine the matter within that tight time period).

The appeal against the interim steps came before District Judge Deborah Wright on 18 December 2020 and was heard via remote video technology. The Judge’s decision was handed down on 13 January 2021.

Early on in the appeal proceedings, and well before the hearing, the Council accepted, and proposed to the Court, that the interim steps pending appeal should reflect the main decision taken at the review hearing (i.e. the reduced hours and the barring of the tenant). So, by the time of the appeal hearing, the interim suspension was not, in reality, in play.

“Serious Crime”

Any summary review application launched by police, must be accompanied by a certificate from a superintendent (or more senior officer) stating that, in his or her opinion, the premises is “associated with serious crime or serious disorder or both”. For the purposes of summary review applications, “serious crime” is defined by reference to section 81(3) of the Regulation of Investigatory Powers Act 2000 (“RIPA”). It is where:

a)  An offence that is or would be constituted by the conduct is an offence for which a person who has attained the age of twenty-one and has no previous convictions could reasonably be expected to be sentenced to imprisonment for a term of three years or more;

Or, as importantly in the context of this appeal,

b)  An offence (and this can be any offence, including breaches of Covid regulations and regardless of the likely length of sentence) where the conduct satisfies one of these requirements:

     i. involves the use of violence,

     ii. results in substantial financial gain, or

     iii. is conduct by a large number of persons in pursuit of a common purpose.

In The Office, the superintendent’s certificate cited (among other offences that had been committed) both the common law offence of public nuisance as well as criminal breaches of the Covid regulations.

The landlord’s arguments

On appeal, the landlord did not address the Covid related allegations that led to the police action, nor did they file any evidence disputing the claims of noise and anti-social behaviour associated with the pub. Instead, they focused on the legalities of the summary review process as a whole and, in particular, on the propriety of imposing interim steps pending appeal.

The landlord accepted that once the police had made their application for review, accompanied by the superintendent’s certificate, there was a legal obligation on the Council to conduct the summary review. This follows from the well-known High Court decision in Lalli [2005] EWHC 14.

However, the operator went on to submit that:

1. The Council’s licensing sub-committee was entitled to reach a different conclusion, on the facts, as to whether the premises was properly to be said to be associated with “serious crime”.
2. It was incumbent on the Council to come to their own conclusions as to whether the “serious crime” threshold had been met before imposing, in particular, interim steps.
3. If the Council concluded that the conduct complained of in the police review application did not amount to “serious crime”, then they had no power to impose interim steps.
4. The offending behaviour that led to this review application did not satisfy the definition of “serious crime”.
5. At the time of the full review hearing, when considering whether to impose interim steps pending appeal, the Council was only entitled to review the interim steps imposed at the original interim steps hearing and for reasons which were commensurate with the reasons for the imposition of interim steps at the original interim steps hearing.
6. The Council can only consider other licensing objectives that relate to the reasons for the original interim steps being imposed (in response to the application) and the evidence and reasons for those original interim steps.
7. Since the initial interim steps, imposed in response to the initial application, did not relate to the public nuisance objective, the interim steps pending appeal could/should not be imposed on the basis of the residential noise complaints.
8. Therefore, interim steps pending appeal, in particular those reducing the operating hours, should not have been imposed and should be lifted.

The Council’s arguments

In response to the submissions of the landlord, the Council submitted that:

1. The simple duty on the licensing sub-committee, at the time they considered imposing interim steps pending appeal at the full review hearing, is that set out in s.53D(2) of the LA2003. This requires the Council to have regard to the representations and “consider whether the interim steps are appropriate for the promotion of the licensing objectives”. No more, no less.
2. The same duty applies in the magistrates’ court considering the appeal afresh in light of the evidence before the court (which may or may not be the same as presented to the council below). The court must then determine whether the decision below is wrong in line with the test set out in Hope and Glory [2011] EWCA Civ 31.
3. The plain words of s.53D make it clear that the task of the Council considering interim steps pending appeal (as it is at earlier stages of the summary review process) was not to scrutinise the superintendent’s certificate in order to form its own opinion as to whether there was, in fact, “serious crime” justifying the original application. The certificate is merely something that has to be provided to enable a summary review application to be made by police. Its importance is not to be elevated further than that. If the licence holder seeks to challenge the certificate, then that can only be done by way of a judicial review seeking to quash it in the High Court. This was confirmed as the correct approach by the High Court in Lalli [§63].
4. Both the Council and the Court could and should look at all of the facts in the round when assessing what appropriate and proportionate steps they should take in order to promote all of the licensing objectives.
5. All of the licensing objectives are engaged in this determination – not simply crime and disorder (and not just issues relating to “serious crime”). This follows from the terms of s.53D(2)(a) of LA2003 requiring the Council to consider “the licensing objectives” (plural). Where the LA2003 seeks to confine the consideration of the Council to just one licensing objective, it says so expressly. For example, where police objections are made to the transfer of a premises licence, or to a variation of the Designated Premises Supervisor, the provisions specifically confine relevant considerations to only the crime objective. The same is not true in relation to summary reviews and so all of the licensing objectives are properly engaged, including the public nuisance objective which needed to be promoted in light of the evidence of serious noise nuisance suffered by residents over a long period.

The Judge’s ruling

In the course of her lengthy judgment, the District Judge found in favour of all of the Council’s submissions as to the proper approach Councils should take in relation to summary reviews, interim steps and the limited role of the superintendent’s certificate.

In relation to which licensing objectives were properly engaged in summary review determinations, the Judge stated:

“There is nothing in the legislation which could lead me to conclude that, when considering the licensing objectives, the licensing authority is limited to considering those in the light of serious crime or serious disorder… There is statutory and case law authority for the proposition that all of the licensing objectives must be taken into account at the initial review stage…

“The statutory provisions describing the substantive functions of the licensing authority are focussed solely on what may be necessary or appropriate for the promotion of the licensing objectives (see Lalli)… Section 53D clearly requires the Licensing  Authority to  consider whether the interim steps are appropriate for the promotion of the licensing objectives, as well as considering any representations and determining whether to withdraw or modify any interim steps. The interim steps include the suspension of the licence…

 “There is, therefore, nothing in the case of Lalli which could lead me to conclude that the licensing authority were not entitled to take into account all of the licensing objectives either at the summary review or the full review or the review of the interim steps. Indeed the legislation indicates that they must do so and this was confirmed in the case of Lalli…

“Breaches of the regulations are criminal offences. However, even if they might not have concluded that the premises were associated with serious crime or serious disorder, by this time all of the licensing objectives were engaged and they were entitled to look at public safety as it is abundantly clear, even from the brief reasons they gave, that they did.  I could not say that the decision was wrong…

“As I have already indicated all of the licensing objectives were engaged and the prevention of public nuisance is one of them. They were obliged to take this into consideration and I cannot say their decision in this respect was wrong.”

On this basis, the Judge did not need to consider, for the purposes of her decision, whether or not the facts actually disclosed in the police application for summary review amounted to “serious crime”, since that was not the yardstick by which the Council or Court had to measure their determination. However, the Judge went on to make these obiter observations:

1. Breaches of Covid regulations, even if prosecuted as a public nuisance, would be “extremely unlikely” to attract a custodial sentence of three years or more;
2. But that is not the only way in which the offending in this case could amount to “serious crime”. An offence, any offence, which involves “substantial financial gain” could also amount to “serious crime” for the purposes of s.81 RIPA. The Judge found that limb of the test was satisfied in this case (and her comments may be equally applicable to other cases):

Although I have not heard evidence directly on the point of financial gain, there is evidence that large numbers of people were congregating in the pub and for extended hours. On the basis that most publicans do not run their premises for altruistic purposes, (and, given his apparently cavalier attitude to his neighbours’ concerns, that Mr Walsh was not  motivated by a community spirit), I am entitled to infer that the very reason the publican  allowed The Office to operate for extended hours and in breach of coronavirus regulations  was for financial gain. Given the evidence of the individuals about the length of time over which this was occurring and the regularity with which it was occurring, I am entitled to infer that there would have been a substantial financial gain in operating the pub outside of the terms of the licence and in breach of the various regulations introduced to limit the spread of COVID 19. This would have amounted to criminal conduct. It therefore falls within the definition of serious crime. 

Since the Council had already agreed to amend the interim suspension and replace it with reduced hours and conditions reflecting the main decision taken on review, the Judge then determined what, in the Court’s view, the interim steps pending determination of the full appeal should be. The Judge considered that the extent of the noise nuisance being encountered by local residents was so severe that it required the Court to impose even more restrictive hours on the premises licence than those imposed by the Council. The Judge therefore further reduced the terminal licensable hours to 10.30pm all week as the interim step pending the determination of the full appeal hearing later in the year.

Following the judgment, the landlord withdrew their appeal against the main review decision.

Gary Grant of Francis Taylor Building acted for the London Borough of Ealing, instructed by Ms Hatoon Zeb, Senior Lawyer, London Borough of Ealing.