Reviewing the licence reviewers

What goes around, comes around, as they say. There was a sense of déjà vu on reading the lead story in last week's Morning Advertiser​ about police using evidence from drunks about which pub or pubs they were drinking in to initiate a review of the licence.

Twenty years ago this was headline news in south Wales, where a similar scheme was used, together with a "traffic light" warning system for errant licensees, with a red for those whom the police would target for possible revocation.

In those days, of course, the "evidence" had to be presented in front of the licensing justices and a qualified clerk, who would look carefully at the admissibility issue and would not allow vague and unsubstantiated allegations to go forward.

This, in spite of the fact that a licensing hearing was not a magistrates' court, so the rules of evidence were not as tight.

But in general the justices were reluctant to end a person's livelihood in such circumstances, so successful revocations were rare and only happened in the very worst cases.

These days there seems to be a more "gung-ho" attitude to licence removal and it is right for the trade to flag up the dangers of extending police powers or compelling councils to accept what they recommend. There is no doubt that in those days, the police knew they would not necessarily get the licence cancelled. But they would be flagging up a problem and "doing their job" in monitoring which pubs were the source of potential trouble and disorder.

What this news does point up, however, is the variety of ways in which a premises licence can now be put under threat, even without any further stringent legislative changes from the Home Office. Licence review can be requested by a range of organisations and individuals, and although the outcome is not necessarily revocation of the licence, the threat is always there, particularly in a highly charged political atmosphere.

Currently, there is no doubt that many licensing committees operate under the constraint that their decisions can be challenged on appeal, so they are very careful to weigh up the evidence and give valid reasons for reaching their decisions. This is as it should be: they are a legal tribunal and ought to be accountable, especially where they are capable of destroying a career or a living for an individual.

The suggestion that somehow their decisions, however perverse, should not be properly reviewed by the magistrates — or that the magistrates could use their own judgement on the evidence presented — is a body blow for the industry and should be vigorously resisted. It was always on the cards that local council decisions were capable of being swayed by events or political circumstances rather than the evidence. Many practitioners made this point during the discussions on the White Paper, which preceded the Licensing Act 2003.

Home Office​

At the time the Home Office conceded that this was an expressed concern, but maintained that local democracy was the best forum for licensing decisions. But they built into the Act a proper appeals procedure to act as a check on the situation (and also to comply with the Human Rights Act).

Since the Act came into force there have been a number of instances where the decisions of a district judge, acting as a magistrates' court, have given a clear direction on how the Act works and how decisions of the licensing committee should be reached. Of course, such a decision is not binding, but it is interesting how many of these first-appeal decisions have been quoted and used — possibly mainly because fewer licensing cases are going up to the Administrative Court.

Removing or curtailing this tier of the licensing process is a big mistake. It should not happen.