Chief Constable of Cheshire v Gary Oates
In an important decision, a District Judge has ruled that interim steps ordered on a summary review die when the final determination of the review is made. In so doing she decided that the DCMS Guidance on the topic was wrong.
In August 2011 Cheshire Police applied for summary review of the premises licence of a nightclub called Chambers in Runcorn. Halton Borough Council took the interim step of suspending the licence, refused to remove the suspension at a subsequent hearing, and at the final hearing of the review application suspended the licence for three months. The licensee appealed. It was common ground that the final order of suspension did not come into effect until the appeal was disposed of (section 53C(11) Licensing Act 2003).
The issue, however, was whether the interim steps continued to have effect during the appeal proceedings. The DCMS Guidance on Expedited/Summary Reviews (paragraph 6.2) advises that where an appeal is lodged, the interim steps continue until the appeal is disposed of. The licensee, however, acting on Counsel’s advice that the Guidance was wrong, re-opened the premises. The Police, disagreeing with the licensee’s advice, issued three closure notices against the designated premises supervisor, Gary Oates, under section 19 of the Criminal Justice and Police Act 2001 and then applied for a closure order, alleging that the premises were being used for the unauthorised sale of alcohol.
Mr. Oates defended the proceedings on the grounds inter alia that there had not been unauthorised sale of alcohol within the meaning of section 21 of the 2001 Act. This meant that the Court had to determine whether the interim step of suspension survives the final determination.
On 19th December 2011 the application for the closure order came before District Judge Knight sitting at Halton Magistrates’ Court.
The Chief Constable argued that where, as here, an order for suspension had been made three times, the statute clearly contemplated that the suspension should endure through to the end of the appeal proceedings; otherwise the purpose of the summary review provisions would be defeated.
The District Judge rejected that argument, holding that the interim steps had ceased to be effective once the final determination had been made. Section 53B is expressly entitled “interim steps pending review”, while section 53B(1) makes it clear that interim steps are steps pending the determination of the review applied for. The only provision that could possibly prolong the life of such steps is section 53C(2)(c). However, the learned District Judge held that this was an appallingly drafted provision which did not clearly achieve that effect.
District Judge Knight accepted the argument of Philip Kolvin QC, who appeared for Mr. Oates, that both the common law principle against doubtful penalisation and section 3 of the Human Rights Act 1998 entailed that the statute should not be taken to remove the rights of the licensee to trade unless such deprivation was clearly expressed, and that any ambiguity should be resolved in favour of the licensee. She also held that the fact that no right of appeal had been conferred by Parliament against the imposition of interim steps reinforced the interpretation that such steps were taken to be short-lived, interim arrangements pending the more mature consideration of the overall position at the final hearing.
The Police had also prosecuted Mr. Oates for unlicensed trading under section 136 of the Licensing Act 2003. In view of the District Judge’s ruling, and also because they had no statutory right to lay the information in the first place under section 186 of the Act, they withdrew the prosecution.
An appeal against the decision at the final review hearing is schedule for March 2012.