Licensing Applications

News: “Deterrence’s” Cases – Bark may be worse than its bite

  • Date: 15/06/2009
  • Source: Poppleston Allen
  • Author/Solicitor: Andy Grimsey

Subscribers may remember my eNews of the 13th May 2009 which highlighted the case of Bassetlaw District Council vs Worksop Magistrates Court [2008] EWHC 3530 (Admin). I voiced our concern that the High Court was punishing licensees, via the imposition of conditions on the basis of deterrence, in promoting the crime and disorder licensing objective. The main worry was that Licensing Committees would apply this precedent in a less targeted and less considered approach than the High Court. Quite understandably, many Councillors are more interested in local politics and there was a danger that Revocations or Suspensions would be imposed, using this decision as justification, when conditions may have been the proportionate response.

The case has therefore generated some interest. Firstly, some lawyers have experienced difficulty in even finding the case on the internet, as the law reports refer to Worksop as "Workshop"!

Secondly, queries have been raised about the application of the original Guidance in this case. Commentators have observed that there is indeed reference in the Government Guidance to the use of deterrence-based conditions for "Reviews arising in connection with crime", but it has also been noted that this case involved two failed test purchases. In the list of serious crimes and criminal activity which the Guidance enumerates as examples (including prostitution, drug trafficking, sale and distribution of illegal fire arms), the "use of the premises….. for the purchase and consumption of alcohol by minors" appears in the middle. This can be read as displaying the Government's view that such activity is as serious as the other criminal activities mentioned. However, a premises used habitually for the purchase and consumption of alcohol by children is not necessarily the same as a premises which has failed two test purchases. For example, one could imagine a local off-licence that has a long standing reputation of serving children as an example for the former; whereas a premises that may have simply failed two purchases in one day could actually otherwise be a well-managed venue where something just "fell through the cracks" on the day in question. Deterrence-based conditions may be appropriate for the former, but perhaps not for the latter.

Perhaps even more important, however, is the Practice Direction on the Citation of Authorities dated the 9th April 2001. This states that the judgment on an application attended by one party only (as in this case, by the Licensing Authority) may not in future be cited before any Court without an express statement from the Judge to that effect. The point of this direction was to prevent irrelevant, badly cited, or repetitive judgments being put forward in argument at Court. Clearly, an unopposed application (as in this one) is not considered a suitable precedent unless the Judge has indicated that it should be exempt from the general practice direction. The Judge did not expressly say that it should be, and therefore the door that appeared to be wide open for Licensing Authorities to punish licensees could well be slamming with equal speed.

For more information please contact Andy Grimsey .