Beware of the appeals 'lottery'

A significant consequence of the passage of time is the reduction in knowledge and experience of magistrates’ courts where licensing appeals are heard. I have been involved in several appeals recently and these hearings are very different not only to licensing committees but are now much more regimented and procedural.

I recall doing several appeals in 2006 where I and the council’s barrister simply turned up with our witnesses and had a hearing. Now specific directions are given by the magistrates, statements taken and served and bundles prepared. If an operator is to lodge an appeal then it is to get involved in serious litigation involving considerable preparation, court attendance, cost and the risk of paying more costs, if unsuccessful.

In addition, the appellant is immediately on the back foot. The decision has been made by the licensing committee, which is a statutory body of local councillors and, particularly if procedure is followed and detailed reasons given, it will be difficult to overturn. 

Hope and glory

The appellant also has to deal with the legal position emphasised in a ‘hope and glory’ case that due regard must be given to the local authority’s decision makers and the magistrates need to be satisfied that the decision ‘is wrong’. In other words, it will not be good enough simply to employ a good barrister and have a ‘re-run’ in more formal circumstances where evidence is given on oath and the magistrate will be convinced that the local residents have no evidential basis for their ‘concerns’, and that, accordingly, the appeal will be allowed.

Magistrates are now more likely to regard the local authority’s appreciation of those ‘concerns’ as a reasonable exercise of their discretion and they will need a counter-balance of some weight to disagree.

The second difficulty for the appellant is that the licensing policy still binds magistrates. If there happens to be a cumulative impact policy and the licensing committee has made its decision that the application for a new premises licence is contrary to that policy then the magistrates’ court cannot disregard the policy, but will have to come to a different decision on the facts and evidence before it.

Example

About a year ago, I represented a local operator who opposed, together with the police, a respected chain of convenience stores. The application for a new licence was against policy. The licensing committee decided that it was not an exception to the policy despite a very thorough presentation including expert evidence by the national retailer. The latter appealed but then withdrew the appeal.

The reason was that there was too much risk and that having made such a thorough presentation to the licensing committee there were no more cards left to play to ask the magistrates to disagree and to allow the appeal to stand.

This is an important consideration, tactically, for an operator when considering an appeal. If specialist ‘expert evidence’ is brought before the local authority licensing committee and is rejected, then what new evidence can be brought before the magistrates? It may be better to ‘keep your powder dry’. In my experience, local councillors like to decide on the state of affairs in their locality themselves and are not necessarily convinced by an outsider telling them the position on the basis of two or three visits to their area. The magistrates may or may not be more convinced by this type of evidence.

Other factors

Other factors to consider are a likely delay of three to six months or maybe more before the hearing particularly if the matter is to be listed for a number of days. Unfortunately, due to cuts, the magistrates’ court system is not as efficient as it was and many are slower at serving the process and arranging for court dates, which may not even be in the locality of the premises.

Also lodging the appeal is, particularly if residents are involved, maintaining the im-passe between you, the local authority and the residents. An alternative may be to consider operating with what you have (as long as it is commercially just about viable) and looking to perhaps vary if you can convince those against you that you have satisfied their concerns.

Lottery

The more experienced operators’ call of “well there’s always the magistrates” should not be so convincing; an appeal is very much a lottery; and much will depend also on the court itself. Will there be three lay magistrates or a district judge?

The latter is often preferred by operators because there is a more neutral and professional stance, and also a greater willingness to overturn a local authority decision but that is not necessarily the case. The power of residents to influence a magistrates’ court should not be underestimated.

Recently, I was involved in a three-day appeal for a bar and the case presented was very strong, including convincing expert evidence, but the local authority simply produced six local residents with some evidence of problems and general ‘concerns’ and that was sufficient for the appeal to be dismissed.
Serious consideration, legal advice and an overview of all options should be undertaken before embarking on the appeal process.