Legal ruling could hamper licence appeals

Pubs could find it more difficult to successfully appeal onerous licensing decisions after a new legal ruling.

The Court of Appeal ruling essentially shifts the burden of proof onto the licensee to prove that the council's original decision was invalid.

Owners of the Endurance in London's Soho were appealing against Westminster City Council's decision to ban drinking outside the pub after 6pm and other conditions. Previous appeals at magistrates and the High Court had been dismissed.

Dismissing the latest appeal this week, the Court of Appeal said magistrates must have full regard to the decision of the licensing authority when making a judgment, and not have what amounts to a re-hearing on the original evidence.

The Court's written judgment says it makes "good sense" that licensees should have to persuade magistrates that the authority should not have "exercised its discretion in the way that it did", rather than having magistrates "exercise the discretion afresh on the hearing of appeal".

Solicitor John Gaunt said: "The [Court of Appeal] judge has clarified that magistrates shouldn't either completely ignore the reasons given in the original decision nor slavishly follow them - but they ought to have due regard to that original decision and the reasons given and have that in mind when they come to their decision on appeal.

"The burden of showing that the original decision was wrong falls more squarely on the appellant. In future it has been made clear that he will have to establish that the council got it wrong."

Julian Skeens of Jeffrey Green Russell solicitors, who represented the Endurance, had argued that there was insufficient evidence to apply the conditions. He accused Westminster of wanting to ban outdoor drinking, which the Council denied.

Westminster councilor Brian Connell said this week: "As far back as 2008 the council's licensing sub-committee considered evidence from residents, environmental health officers and the police and found that the complaints of noise were entirely justified."