Fresh complaints

A recent Court of Appeal case looked at the issue of whether the Magistrates’ Court had the jurisdiction to consider grounds of complaint other than those raised at the initial review hearing. Paddy Whur analyses the implications of the judgment for operators and licensing authorities.

Can an Appeal Court consider grounds of complaint not raised at a review hearing? The recent case of Noor Mohammed Khan (Claimant) v (1) Coventry Magistrates Court (Defendant) and Coventry City Council (Interested Party) [2011] EWCA Civ 751
looks closely at this issue, with the Court of Appeal giving an authoritative decision on the point.

The claimant (Khan) operated an off-licence in Coventry. There had been underage sales at the premises, which had led to a revocation of the licence at review proceedings brought by the local authority's trading standards department.

The claimant appealed this decision to the Magistrates' Court, who dismissed the appeal, therefore making the revocation effective.

The magistrates came to their decision to uphold the revocation on three grounds:

• the operator had breached fundamental sections of the Licensing Act
• there had been poor understanding of the Act, and no promotion of the licensing objective
• there had been poor management of the premises, such that crime prevention measures in the locality, and measures to protect young people from harm, could be undermined by the claimant retaining his licence.

The claimant argued that the magistrates did not have jurisdiction to consider any grounds of complaint other than those raised in the initial review. The introduction of fresh information had contributed to the revocation being upheld at the Magistrates Court; he argued that this was not a proper course of action, and that newly-introduced evidence should not have been relied upon by the magistrates as it was not part of the original review (the new information relied upon was that large amounts of alcohol were delivered late at night and that this alcohol was illegal in that duty had not been paid).

This issue went to the High Court and then to the Court of Appeal.

In a succinct judgment, the Court of Appeal held that section 181(2)(b) of the Licensing Act 2003 does not have the restrictive effect the claimant contended. Section 181(2)(b) makes it clear that the magistrates have the power to make any order of the kind that the licensing authority could have made, but it does not say anything about the grounds on which such an order might be made. The Court stressed that this would depend on the evidence before it. The magistrates' court is not limited to considering only those grounds of complaint that were raised in the notice of application or the representations before the licensing authority:

"The magistrates' function is to consider the application by reference to the statutory licensing objectives untrammelled by any of the Regulations that govern the procedure for a Review under section 51. They are therefore entitled to consider evidence of events occurring before the application to the Licensing Authority as well as evidence of events occurring since its decision."(Paragraph 12)

The Court went on to say: "It should be remembered that the right to call new evidence cuts both ways: it may benefit the Licensee if he can show that some or all of the concerns which lead the Licensing Authority to revoke or restrict his Licence have been met." (Paragraph 13)

We have always advised clients preparing for an appeal - whether they be commercial operators, police forces or local authorities - that the course of conduct of an operator, from the date of a review to the date of the appeal is highly relevant. The Court of Appeal has confirmed in this case that this is the correct approach; the issue is now authoritatively determined.

Paragraph 14 of Lord Justice Moore-Bick's judgment is critical:

"Having regard to the statutory provisions and to the fact that the Appeal is a fresh hearing, I am satisfied that the Magistrates are not limited to considering only those grounds of complaint that were raised in the Notice of Application for the Representations before the Licensing Authority. It is not possible to infer that from section 181(2)(b) and I am satisfied that if that had been intended such a restriction would have been included in the Act itself or the Regulations made under it."

What is now abundantly clear is that, if you are an operator, seeking to overturn the decision of a licensing authority, then in the time running up to the appeal you must exhibit clear engagement in promoting the licensing objectives. The same goes for local authorities who are responding to an appeal at the magistrates' court. If the operator has heeded the warnings after the decision to which they are appealing and is promoting the licensing objectives at the time of the appeal, then this will be to their advantage at the time when the magistrates will make their determination.

This again highlights that the ability of the operator to promote the licensing objectives between review and appeal is critical for both sides of the litigation.

Paddy Whur is a partner and joint head of the Licensing Group at law firm Walker Morris. He can be contacted on 0113 283 2500 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it..