Andy Woods highlights the importance of human rights legislation insofar as licensing applications and hearings are concerned.
I have recently been involved in a couple of cases during which I have been surprised to see that the basic principles enshrined in the Human Rights Act 1998 appeared to be ignored.
I fully appreciate that all non-lawyers reading this article may have a view that the Human Rights Act was introduced for lawyers to make up as many arguments as possible, so as to try and win an argument for their clients or extend the length of any hearings! I have also witnessed at first hand the exasperated look on the faces of committee members and local authority officials whenever a Human Rights Act argument is raised, but the principles of the Human Rights Act are some of the most obvious and basic principles in law.
Whilst the Licensing Act 2003 and the Gambling Act 2005 and all the various regulations issued under those pieces of legislation set out in great detail the procedure and principles to be adopted at licensing hearings; we all must remember that the main parts of the Human Rights Act which have been supported by the most senior courts both in the UK and Europe must also be adhered to.
Article 6 of the Human Rights Act guarantees the right of applicants to a fair trial and provides as a minimum the following:
- A fair and public hearing with public judgement.
- An independent and impartial tribunal.
- A reasoned judgement.
It is not only applicants, but also those who make representations/interested parties/responsible authorities who also enjoy the right set out in Article 6.
The principles of a fair and public hearing are extremely important when it comes to licensing matters. The European Court of Human Rights has said that the purpose of Article 6 was amongst other things “to place the tribunal under a duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties, without prejudice to its assessment of whether they are relevant to its decision”.
Particular examples of the constituents of the right to a fair hearing are as follows:
- There must be a equality of arms between the parties. This means that each party must be afforded a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage. This raises two issues insofar as licensing hearings are concerned. Time limits are often placed on those at licensing hearings and applications are regularly made by those attending the hearing for more time to speak. The other issue arises when objections are made but objectors do not attend the hearing so as to allow questions from the committee. It seems to me that in both cases it is a matter for the licensing committee and advisors to exercise a reasoned approach to the hearing by assessing what is fair and reasonable as a time limit and by deciding how much weight to attach to evidence if all evidence has not been given.
- The hearing must be properly adversarial. This means that both sides should have adequate notice of their opponents' case in proper time to consider and address the issues relevant to the case.
- There must be full and proper disclosure of relevant material. This third point ties into the second point and again the European Court has said that without such disclosure it would be impossible for the parties to know and comment about the evidence.
My experience throughout the UK in recent years is that licensing hearings are generally more compatible now with the Human Rights legislation than the hearings under the Licensing Act 1964 and the Betting Gaming and Lotteries Act 1963. I did, however, recently appear in a case in which representations had been made in support of premises which were the subject of a review application brought by the police and the police had not been notified that letters of support had been written. This is quite clearly a fundamental breach of the Human Rights Act and I was amazed that in 2013 such breaches still applied.
I think the principle of an independent and impartial tribunal is clear and the third basic principle of Article 6 obliges decision-making committees to give reasons for their decisions. I still think that many decisions which are given are flawed in that reasons are not given. I still regularly come across decisions which simply state “we refuse the application to extend the licence having considered all of the evidence and legislation”. This is not a reason for a decision it is a statement of the decision.
The reason for the decision must set out what evidence is preferred and why. This does not need to be a six-page clinical examination of all the evidence, but the actual decision must be explained to those parties at the hearing. Decision makers must make it clear that they have preferred one piece of evidence to another piece of evidence or attach more weight to one piece of evidence or another piece of evidence and must explain clearly why that is the case.
It must also be remembered that whilst local knowledge is an important part of licensing committee hearings, if the licensing committee wants to rely on its local knowledge, then it should put its knowledge to the parties at the hearing. I have recent experience of a decision being made which was based upon local knowledge of the committee members and at no stage during the three-hour hearing were any of these points put to the parties in the case. This is a fundamental breach of the human rights legislation.