Remote licensing hearings are lawful, judge confirms
In what is thought to be the first case in which the courts have been asked to consider the question, a District Judge has dismissed a challenge by a south London nightclub to the use of a remote hearing procedure by the London Borough of Lewisham to revoke its premises licence.
District Judge Abdel Sayed, sitting at Bromley Magistrates’ Court, agreed with Lewisham that remote hearings are permitted under the relevant legislation:
- Neither the Licensing Act 2003, nor the Licensing Act (Hearings) Regulations 2005 require hearings to be held in a physical “place”. In principle, a “place” for the purposes of the Hearings Regulations can include a “virtual platform” and “attendance” at such a hearing can include “electronic attendance”. [22]
- 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. [23]-[24]
- 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. [14]-[19]
- The fact that the Welsh Senedd had expressly 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. [21]
Although, as a decision of the magistrates’ court, this judgment is not technically binding on any other case, it is so far the only case that has considered the issue and is therefore persuasive authority. It remains to be seen whether the High Court will be asked to give a definitive ruling on this important issue.
Matt Lewin, a member of Cornerstone Barristers’ Licensing Team, represented Lewisham. His key lesson for licensing authorities is the need for clear ground rules to ensure that any remote hearing takes place fairly and without any doubt as to its validity.
He recommends 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?
Matt is listed as a “leading junior” in Licensing in the most recent edition of Chambers and Partners. He regularly acts for licensing authorities, often as legal adviser to licensing committees, as well as providing training.
Webinar – Remote licensing hearings: Essentials and best practice (3 May 2023)
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 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.