Adjourning Licensing Hearings

Transcription

1 Adjurning Licensing Hearings Sarah Clver, Barrister and Head f Licensing at N 5 Chambers gives her pinin n a cmmn practical prblem cncerned with adjurning licensing hearings.. An issue which appears t be crpping up with increasing regularity is the prblem f adjurning Licensing Cmmittee hearings when ne party r anther is unable t attend. Accrding t the Hearings Regulatins 1, a hearing generally must be held within twenty wrking days f the end f the cnsultatin perid. Licensing Authrities will ccasinally take this as an abslute limit, and refuse t cntemplate any adjurnment at all. This is incrrect, and can cause difficulty, since the hearings are ften scheduled withut cnsultatin with the parties wh are expected t attend them. By virtue f the same Hearings Regulatins, the licensing authrity has the pwer t extend any time limit prvided fr within the Regulatins 2, with the prvis that it is in the public interest t d s. Sme licensing authrities have argued that this is a pwer that can nly be exercised by the Cmmittee, necessitating attendance at the hearing scheduled in rder t argue fr an adjurnment f it. This is als an ver-zealus applicatin f the rules. Case-law makes it plain that Human Rights law applies t Licensing Cmmittee hearings, and that licensees have a right t be heard when matters pertaining t their licences are being cnsidered. Article 6 has been held t apply in full t Licensing Hearings, and als Prtcl 1 f Article 1: Prtectin f prperty. 3 1 The Licensing Act 2003 (Hearings) Regulatins 2005 S/I 2005 N 44 2 Regulatin 11 Pwer t Extend Time 3 Prtcl 1 f Article 1: Prtectin f prperty. 1

2 Article 6(1) might have been expected t apply, since it talks f the determinatin f civil rights and bligatins 4 A key Eurpean authrity 5 (Tre Traktrer) cnfirms that Article 6(1) is applicable because a licence cnfers a right n a licensee, in the frm f an authrisatin in accrdance with the cnditins f the licence, and the legislatin. Therefre, a licensee has a civil right t run a business under the licence unless it cntravenes the cnditins laid dwn therein, r gives rise t any f the statutry grunds fr revcatin. Article 6 secures t everyne the right t have any claim relating t his civil rights and bligatins brught befre an independent and impartial tribunal. This certainly includes a Licensing Cmmittee 6. The Eurpean Curt in Tre Traktrer als tk the view that the ecnmic interests cnnected with the running f licensed premises were pssessins. The Curt fund that the maintenance f the licence was ne f the principal cnditins fr the carrying n f the applicant cmpany s business, and that its (1) Every natural r legal persn is entitled t peaceful enjyment f his pssessins. N-ne shall be deprived f his pssessins except in the public interest and subject t the cnditins prvided fr by the law, and by the general principles f internatinal law. (Italics added). 4 Article 6(1): In determinatin f his civil rights and bligatins r f any criminal charge against him, everyne is entitled t a fair and public hearing within a reasnable time by an independent and impartial tribunal established by law. 5 Tre Traktrer Aktieblag v Sweden (1989) 13 EHRR Thse with lng memries will recall that the cncerns abut impartiality f Lcal Authrities in hearing representatins frm their wn Departments as respnsible authrities was reslved by affrding the right t a hearing de nv n appeal t the Magistrates during the intrductin f the LA

3 withdrawal had adverse effects n the gdwill and value f the licensed premises. A licence t serve alchl shuld, therefre, be cnsidered t be a pssessin within the meaning f Article 1 Prtcl 1. Such withdrawal f a licence can therefre cnstitute an interference with the licensee s right t peaceful enjyment f its pssessins. A Scttish case 7 ( Catscratch) in 2001 tk the applicatin f Article 6 t a Licensing Hearing ne stage further. In an applicatin fr judicial review f the Scttish (Glasgw City) Licensing Bard s decisin t refuse an extensin t an entertainment licence t a nightclub, the appellants argued that the way in which the case had prceeded befre the Licensing Bard had vilated their rights t a fair trial under Article 6. The High Curt accepted that Article 6 applied in full t the hearing f a Licensing Bard 8. There was n dubt that the Licensing Bard was a similar bdy t Licensing Cmmittees - a bdy created by statute fr the purpse f dealing with applicatins fr licences; exercising an administrative functin n a quasi-judicial basis. Article 6 applies in full, ntwithstanding the fact that Article 6 makes reference t criminal prceedings. 7 (1) Catscratch Ltd (2) Lettuce Hldings Ltd v Glasgw City Licensing Bard (2001). Scttish Outer Huse, Curt f Sessin. 8 Lrd Jhnstn: I am prepared t accept that Article 6 applies generally in the cntext f a hearing f this type, ie: a Licensing Bard, albeit it is administrative and it is nt, in my pinin crrect t regard the Bard as exercising the functins f a tribunal. Having said that, hwever, I d nt cnsider the test t be required under the Cnventin raises any different issues, certainly in this case, n the questin f fairness and the equality f arms frm thse required by the law f Sctland. 3

4 The Curt held 9 that the essential ingredients f fairness were a general equality f arms between the parties and the eliminatin f any ntin f ambush when it came t the emergence f material. The Scttish High Curt fund that the Licensing Bard shuld nt be regarded as being the same as a curt r tribunal, and that the prcedures t be adpted at the statutry meetings were substantially a matter fr the tribunal t determine, but that their prceedings were subject t the supervisin f the Higher Curt, with regard t the cmmn law principles f natural justice, and, crucially, the Eurpean Cnventin n Human Rights. This brings the whle f Article 6 10 int play. 9 Lrd Jhnstn I d nt dubt that the licence hlder shuld have a fair pprtunity f crrecting r cntradicting infrmatin which is put befre the Bard by an bjectr, but I d nt accept this means he has the right t insist that he d s by leading evidence. What matters is whether they have denied a party that equality f treatment which is invlved in the right t a fair hearing. The essential ingredients t my mind f fairness are a general equality f arms as between the parties and the eliminatin f any ntin f ambush when it cmes t the emergence f material. 10 ARTICLE 6 1. In the determinatin f his civil rights and bligatins r f any criminal charge against him, everyne is entitled t a fair and public hearing within a reasnable time by an independent and impartial tribunal established by law. Judgment shall be prnunced publicly by the press and public may be excluded frm all r part f the trial in the interest f mrals, public rder r natinal security in a demcratic sciety, where the interests f juveniles r the prtectin f the private life f the parties s require, r the extent strictly necessary in the pinin f the curt in special circumstances where publicity wuld prejudice the interests f justice. 2. Everyne charged with a criminal ffence shall be presumed inncent until prved guilty accrding t law. 3. Everyne charged with a criminal ffence has the fllwing minimum rights: (a) t be infrmed prmptly, in a language which he understands and in detail, f the nature and cause f the accusatin against him; (b) t have adequate time and the facilities fr the preparatin f his defence; (c) t defend himself in persn r thrugh legal assistance f his wn chsing r, if he has nt sufficient means t pay fr legal assistance, t be given it free when the interests f justice s require; 4

5 These Human Rights and Natural Law principles will apply with frce when the licence is being subjected t a review applicatin with the pssibility f restrictins being placed n the licence, r even revcatin. The regulatins 11 make clear that an adjurnment shuld be cnsidered even if the premises licence hlder simply fails t turn up. It is clear, therefre that the Licensing Authrity must give cnsideratin t the need fr an adjurnment where it becmes apparent that a party t the prceedings is unable t attend, particularly if that party is the premises licence hlder. The cnsideratin must be given in the cntext f the public interest f granting an adjurnment. Public des nt just mean members f the public. It is in the wider public interest t have due prcess upheld; and fr licensees nt t have their businesses and livelihds adversely affected withut being given the pprtunity t be fairly heard; and it is in the public interest fr human rights t be carefully bserved and upheld at all times. It is als in the public interest t give careful and fair hearings t applicatins that might be f general benefit t the public; the lcal nightlife, and the ecnmy; r t representatins that might demnstrate that the licence affects the public adversely. These, and dubtless (d) t examine r have examined witnesses against him and t btain the attendance and examinatin f witnesses n his behalf under the same cnditins as witnesses against him; (e) t have the free assistance f an interpreter if he cannt understand r speak the language used in curt. 11 Regulatin 20 f the Hearings Regulatins ( The Licensing Act 2003 ( Hearings) Regulatins 2005). 5

6 mre, are all valid cnsideratins. There is n justificatin fr excluding the parties themselves frm the cnsideratin f public interest. Thus it can be seen that a request fr an adjurnment shuld never be ignred, and that a careful cnsideratin f the request shuld be made by the Licensing Authrity. It is a gd idea t cnsult the parties n availability befre a date is set, t avid the prblem arising in the first place, if at all pssible. Sarah Clver Head f Licensing N 5 Chambers, Birmingham 6