“Super-human” Judge Rules Interim Steps Remain in Force Pending Appeal

01 Jan 2018

In R (o.a.o. 93 Feet East Ltd) v Tower Hamlets LBC (16th July 2013), the High Court has resolved a question that has troubled licensing lawyers since December 2011, when a district judge ruled that the DCMS guidance was wrong to say that interim steps imposed on a summary review under the Licensing Act 2003 remained in force pending appeal. In refusing permission to apply for judicial review, Dingemans J. ruled that the guidance had been right after all.

The question concerns the summary review procedure under the Licensing Act 2003, designed to deal with premises associated with serious crime or serious disorder. The procedure provides for a quick decision from the licensing authority (“interim steps”) followed by a more considered review within 28 days. The debate centres on what happens pending an appeal against the review. The DCMS Guidance issued in 2007 said that the interim steps remain in force. In Chief Constable of Cheshire v Gary Oates (19/12/11, unreported) the district judge held this was wrong, and that the interim steps do not survive beyond the determination of the review. The Home Office ducked the issue by removing the relevant words from its re-issued guidance in July 2012, without sharing with us its own view of the position. Until now the matter had not been considered by the High Court. The issue is an important one, because the interim measure most often imposed is suspension of the licence, so the consequences for a business having to remain closed until the appeal is decided months later can be very painful.

The Metropolitan Police had sought a summary review of the premises licence of a club called 93 Feet East, following undercover operations which they said revealed serious problems with the use and sale of drugs on the premises. Tower Hamlets as licensing authority considered what interim steps were required pending the review, and decided to suspend the licence. The licensee made representations, disputing the police evidence and seeking to re-open. The licensing authority decided that the suspension should remain in place pending the review.

At the review hearing the licensing authority revoked the licence, and having heard argument from both the club and the police, decided that the suspension should remain in effect until the hearing of an appeal against the revocation, if there was one. The club did appeal, and also brought a judicial review claim, claiming that the licensing authority had no power to apply any interim steps beyond the date of the review hearing.

The District Judge in Oates declared that the relevant provisions (section 53C(2)(c) of the Licensing Act 2003) “defied understanding by any human being”. Undeterred by this warning, Dingemans J, in a fully-argued permission hearing, leaped over the tortured language with a single bound to construe section 53C(2)(c). He reminded himself of the statutory purpose of the provisions, introduced by the Violent Crime Reduction Act 2006, which was “to deal with problem premises, as they are perceived to be, and ensure they could be closed pending revocation proceedings and any final judicial determination”. He said that the clear meaning of the statute was that the interim steps should remain in effect until the time for appealing the review had expired, and any appeal had been determined. He therefore refused permission for the claimant to argue the point further.

This decision will be welcomed by licensing authorities, who regularly face this argument on summary reviews. Despite this helpful clarification, two questions remain: what happens if an appeal is not heard within 3 months, the maximum period of suspension permitted by way of interim steps? And can a premises licence holder seek to change the interim steps later, by making repeated representations under section 53B(6), as the Metropolitan Police argued before the judge? The judge cast doubt on the second of those points, but the first point, as with so many questions under the Licensing Act 2003, must await further rulings from the higher courts.

Rory Clarke acted for Tower Hamlets.

To read transcript, please click here: 93 Feet East Ltd transcript