Human rights in the licensed trade

Suzanne Davies of The Publican Newspaper's expert legal team offers advice.​

Licensing applications sees rise in implementation of legislation​

I have a client, who, whenever we reach a difficult point at any stage of a case, leaps to his feet and queries "human rights?"

I had initially thought the implementation of the human rights legislation into our system would be a storm in a teacup, after all, the court should really have been implementing the principles of the convention in any event.

But increasingly, I am seeing it referred to and indeed referring to it myself, in licensing applications.

Interestingly, a very eminent QC recently told me that he thought licensing and planning, by contrast with criminal law, would feel the impact most from the implementation of the legislation.

My client and I have been involved in two cases recently where the human rights legislation has been used in legal arguments, successfully in one and unsuccessfully in another.

The first involved admissibility of a covert video into evidence, which had been taken at my client's premises by a commercial investigator.

For those of you familiar with the antics of trade objectors and their advisers, you will be aware that all manner of tactics are adopted to attempt to defeat the competition.

The purpose of the video was to demonstrate that my client's operation, despite having a special hours certificate, did not comply with the requirements of the Act. The video was taken covertly one Saturday night and was shown to the justices, in respect of a Section 77 application for another outlet of the same brand in a different city.

It seemed to me demonstrably unfair that a video that had been taken covertly, appeared to be highly selective and was more persuasive than probative, should be admitted into evidence.

After all, if, for example, permission had been sought and granted, an opportunity would have been available to the licensee, for one thing, to ensure any filming was not selective.

Legal argument was prepared and aired before Honour Judge Hopkin, of the refusal by the justices to grant the special hours certificate.

The argument under the human rights legislation for the appeal court to consider was whether the taking of the video and the showing of it in public contravened the rights of my client's company and its employees.

The legal support for this contention was that Article 8 of the European Convention on Human Rights provides that everyone has the right to respect for his private and family life, his home and his correspondence.

There should be no interference by a public authority with the exercise of this right, such as in accordance with the law, and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country; for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Despite extensive case law and complex legal argument, the judge percolated the arguments down beautifully to two questions. Is a pub a private place and does the taking of the video invade the privacy of a company and its employees? The court found in the affirmative on both questions.

The judge set out in his judgement that although licensed premises are premises to which the public has access, he felt that the premises in question were far from a public house because the licensee has an overriding discretion to exclude those members of the public he does not want upon his premises.

The judge cited specific examples of this, including people who are improperly dressed, drunk, under the age of 18, people who have been barred or if the premises are full and the licensee would be in breech of the terms of his licence if he were to allow them in. It was in those circumstances that the judge and his colleagues felt that the premises were within Article 8.

The second question to consider was whether my client's privacy had been infringed, in turn not providing a fair trial.

The key question the judge posed was if he and his colleagues were members of the public and had gone to the premises and subsequently learned that a person had been making a covert video, would they have felt that their privacy had been infringed.

The resounding answer was yes. The video was made purely for commercial reasons so that it could be shown in court. The judge felt vehemently that anybody going to the premises should not have their privacy interfered with by somebody making a covert video or somebody who wants to use it in opposition at a licensing application.

On that basis, the judge found again that Article 8 was offended and the video was ruled inadmissible. The judge was also kind enough to state that it was a unanimous decision.

By contrast, human rights and a fair trial was used by an objector to an application for a Section 77 to proceed, which was unopposed, during the adjourned period of a contested Section 77 application for the same company applicants and objectors.

Apparently, a fair trial cannot be available to an objector if he has objected to one hearing which is then superseded by another application to which he has not objected because he has missed the notices. He is prejudiced.

What about my client who has perfectly legitimately lodged a notice of application, displayed it on the premises and in the newspaper in absolute compliance with the legislation - how is he receiving a fair hearing?

How is he not prejudiced in relation to his unopposed application?

I agree with learned counsel. It seems to me human rights will run and run as far as licensing is concerned. It will probably run even further if the function moves to the responsibility of local authorities.

I am sure my client will be querying "human rights?" for a good while to come.