Local Government Lawyer Insight February 2018 LocalGovernmentLawyer 40 sure you don’t agree to restaurant conditions. Say you want “flexibility” – no-one will press you as to what exactly that means. ● We are not a music venue: say that your disc-jockeys only play background music. ● We are not a dance venue: so long as you don’t have a dedicated dance-floor, people can do the conga round the whole place every night of the week if you like. ● There have never been any problems at our existing premises: although this is wholly irrelevant to cumulative impact, get as many witnesses as you can to say that your existing premises don’t cause any problems. Fill your application bundles with them. There cannot be too many pages. Neighbours (like the bank next door) who shut up shop at 5:00 are sure to be able to help. ● Find some gimmick: exotic cocktails and craft beer are almost played to death – but there is still life in them. Have you thought about a “cocktail sommelier”? How about “Local beers, wines and ciders, carefully matched to [whatever specialist food will be on the menus]”? ● Find something to hang your application on. Anything that deflects attention from the cumulative impact of your drinkers when they have left the premises. If that parody seems unfair, let me assure the reader that I have heard every one of those claims made, and a licence granted on the back of them; but when the premises have opened, it has been a very different picture. Which brings me to my second suggestion as to why things are “going wrong”. (2) There is insufficient follow-up by sub- committees (or by anyone else) I often wonder if there is any follow-up. The country is littered with licensed premises in which the reality falls far short of (or may be wholly different from) what was promised on application. If councillors sitting on licensing sub-committees would only see for themselves (as I have done, frequently) the utterly disappointing finished product – how it operates, who in fact are its customers, how loud the music is – they may be more inclined to look critically at the exaggerations and bland promises offered to them at hearings. (3) Sub-committees accept evidence at face-value (little or no testing of the evidence) Perhaps it is a function of licensing sub- committees not being at ease with the concept that some witnesses (putting it mildly) tend to exaggerate, and others (putting it bluntly) lie their heads off? The licensing justices, who also sat as magistrates in criminal cases, heard more lies from the witness box, I dare say, than they heard truth. They had no compunction in dismissing evidence as poppycock. By contrast, I find that many local authority sub-committees shrink from any hint that a witness may be untruthful: there is a ‘Bateman cartoon’ of horrified faces if any such suggestion is made. Applicants for licences are just as capable of being untruthful as anyone else. An applicant may say of his existing premises (forgive my repeating the list) – “We have similar premises elsewhere – there is only background music; our customers are mature (not the 18-25s); there is no dancing; we serve food throughout opening hours; we are more a restaurant than a bar” – when the reality (for anyone that has the opportunity and inclination to look for themselves) is that a DJ plays loud dance music every night, as in a recent case of mine; or that there is an availability of food, rather than the service of it; or that similar operations are not restaurants at all but bars serving alcohol. In one case in which I was involved, investigation found that student discounts were offered – where assurances had solemnly been given that the style of operation “did not attract students”. Regrettably, the unwillingness of sub- committees to believe it even possible that witnesses might lie to them has had the unfortunate consequence of developing a culture – or something close to it – in which just about anything can be said at a licensing hearing without fear of contradiction. There is no real scrutiny or testing of evidence. Cross-examination is rarely allowed; and if it is, most sub- committees loathe it, especially if done effectively. The truth does not always come out on its own, and the usual means of teasing it out are not liked by sub- committees, and discouraged at hearings. As a result, some witnesses, as the saying goes, “get away with blue murder”. Of course licensing sub- committees expect to be told the truth – that is how things should be: but it is not always how they are. It is a matter of genuine sadness to me, over and above mere regret, that I find increasing numbers of witnesses – and even a few lawyers – who seem to have no qualms about misleading a committee or court. When two ‘independent’ experts give diametrically opposed evidence, and there is no reconciling their versions of events, and it is impossible to smooth things over by saying one of them is simply mistaken or perhaps exaggerating a little, then, unhappily, one of those experts is probably not telling the truth. And as for lawyers – all I will say here is that we are required by our codes of conduct never to mislead a court or tribunal: about the law, about the evidence, or even about our availability. Children and puppies will push the boundaries of what they can get away with. If they are not checked, their conduct goes from bad to worse – sometimes, until they are completely out of control. So it is with all of us who attend licensing hearings. (4) Lack of transparency: pre--hearing meetings I raised concerns about pre-hearing meetings when I gave evidence last year to the House of Lords Select Committee on the Licensing Act. This is what I said: I am concerned at the growing extent to which decisions are influenced (if not effectively taken) by the result of discussions taking place behind closed doors, at which not all interested persons are present. It is usually local communities, residents’ associations or individual local people who are kept out of the loop. The position is best illustrated by an example, which may be taken as descriptive of a number of cases in which I have recently been involved: ● An application is made in a cumulative impact zone. ● There is residential objection, as well as initial objection from the police and other licensing authorities. ● Pre-hearing meetings take place between the responsible authorities and the applicant and his legal team. As a result of those meetings the responsible authorities withdraw their representations (or do not make any). ● What is said at those meetings is not made public. The meetings are "behind closed doors". All that a licensing committee (or magistrates' court on appeal) hears is that “the police do not