Ties that bind

What should magistrates and licensing committees do when appeals pending in other cases could affect the case before them? Philip Kolvin QC looks at a recent High Court ruling.

In R (Inventive Leisure Services Limited) v Nottingham Justices (Administrative Court, 11 November 2010) Mr Justice Irwin ruled as to how magistrates and licensing committees should behave when appeal decisions in other cases are pending which might affect the case before them.

The situation was that the police had applied to review the premises licence of the Revolution Vodka Bar in Nottingham City Centre, on the grounds of recurrent “glassing” incidents. The council’s licensing sub-committee had imposed a 14-day suspension and attached a condition to the licence requiring the use of polycarbonates in place of glass vessels.

The Appellant appealed. Counsel for Nottingham City Council argued that the Justices should adopt the approach ruled upon by Burton J in R (Hope and Glory Public House Limited) v City of Westminster Magistrates’ Court [2009] EWHC 1996 (Admin), namely that they should only overturn the council’s decision if they considered that it was wrong.

However, the Court of Appeal had by then given permission to appeal against Burton J’s ruling. Counsel for Nottingham argued that that made no difference, and that the doctrine of stare decisis demanded that the ruling of the High Court be followed unless and until it was overturned. The Justices duly dismissed the appeal, holding that not only did Hope and Glory bind them, but that in any case they were satisfied that the council had been correct. In fact, they decided to increase the suspension to 28 days.

The Appellant continued its battle in the High Court, and having been refused permission to apply for judicial review on paper, it sought an oral hearing. Before Irwin J it argued that once permission to appeal had been given by the Court of Appeal in Hope and Glory, the Justices ought to have suspended consideration of the Nottingham case until after the Court of Appeal had finally ruled.

Irwin J rejected the argument. He held that it would have been wrong for the Justices to decline to follow binding precedent. They should continue to apply the law unless and until the law is changed. He considered entirely wrong the suggestion that the matter should be further delayed in a public interest case where intervention is required by way of a licence review.

The case serves to clarify what is an occasional matter of debate. In short, it is not for subordinate tribunals to second guess what might be the outcome of a legal challenge in another case. They must continue to apply binding precedent. If the precedent later turns out to be wrong, nobody will blame them.

Reflecting the importance of the decision to licensing practitioners, the Learned Judge certified that his ruling may be cited in future cases, notwithstanding that it arose on a permission hearing rather than on a full hearing of the application.

Philip Kolvin QC is a barrister at 2-3 Gray’s Inn Square. He represented Nottingham City Council in this case.