1 hope and glory the false dichotomy philip kolvin qc
TRANSCRIPT
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HOPE AND GLORYThe false dichotomy
Philip Kolvin QC
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The appellate function
• Licensing statutes provide for appeals to magistrates’ courts
• They never state the test on appeal
• The tests are judge-made
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Challenges
• The appellate court is unlikely to have a full record of proceedings below
• If it does not hear evidence, how can it decide whether the appeal should be allowed?
• If it does hear evidence, how can it properly give weight to the decision below?
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The dichotomy
•If the appeal is a de novo hearing, how can the appeal court be influenced by what the licensing authority has determined, on differing evidence?•But if the appeal court’s task is to decide whether the authority got it wrong, why should it hear evidence of its own?•In three key cases, higher courts have demonstrated that this is a false dichotomy.
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Stepney BC v Joffe (1949)
• The street trading statute gave an unrestricted right of appeal
• But the High Court held that the decision of the licensing authority received significant weight.
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Lord Goddard CJ
That does not mean to say that the court of appeal, in this case the metropolitan magistrate, ought not to pay great attention to the fact that the duly constituted and elected local authority have come to an opinion on the matter, and it ought not lightly, of course, to reverse their opinion. It is constantly said (although I am not sure that it is always sufficiently remembered) that the function of a court of appeal is to exercise its powers when it is satisfied that the judgment below is wrong, not merely because it is not satisfied that the judgment was right.
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Sagnata v Norwich Corporation (1971)
• In this case, the Recorder overturned a policy decision made by Norwich Corporation to refuse a permit for an amusement arcade in the City.
• The Court of Appeal decided 2:1 to dismiss the local authority’s appeal.
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Lord Denning MR
• Lord Denning MR summarised the dichotomy thus:
"Is the hearing to be treated as a new trial to be determined on evidence de novo, without being influenced by what the local authority has done? Or is the hearing to be treated as an appeal proper, in which the local authority's decision is to be regarded as of considerable weight, and is not to be reversed unless their decision is shown to be wrong?“
• Lord Denning favoured the latter approach• His fellow judges out-voted him 2-1.
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Edmund Davies LJ
• Edmund Davies considered the Lord Denning MR’s dichotomy to be a false one.
• He thought there was a half-way house between, on the one hand, a “review” function without hearing evidence on appeal, and a de novo function in which the decision below is ignored.
• He held that the hearing on appeal is de novo.
• But, following Lord Goddard in Stepney, held that the job of the appellate court is to decide, on the basis of all the material before it, whether the licensing authority went wrong.
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Phillimore LJ
• The hearing must be de novo
• The appellate court must “bear in mind the views of the local authority and be slow to disagree.”
• I.e. Phillimore LJ did not expressly state that the appellate task was to decide “was the licensing authority wrong?” But it must give substantial weight to their views.
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Subsequent experience
• Appellate courts tended to pay lip service to Stepney and Sagnata.
• They could not understand how they were supposed to a) treat the hearing as de novo while b) giving weight to a decision heard on different evidence.
• Sometimes appellate courts, particularly Crown Courts, refused to look at the decision below.
• That is, at least, until Hope and Glory.
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Hope and Glory
• The operators of the Endurance pub appealed against a condition on its licence imposed by Westminster City Council preventing exterior drinking after 6 p.m.
• District Judge Snow upheld the decision.• His legal approach was challenged by way of judicial
review.• The challenge failed at first instance and before the
Court of Appeal.
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District Judge Snow
His approach was:
(1) note the decision of the Licensing Sub‑committee;
(2) not lightly reverse their decision;
(3) only reverse the decision if he were satisfied it is wrong;
(4) … hear evidence;
(5) [conclude that] the correct approach is to consider the promotion of the Licensing Objectives, to look at the Licensing Act 2003, the Guidance made under s182 ..... Westminster's Statement of Licensing Policy and any legal authorities;
(6) … not [be] concerned with the way in which the Licensing Sub‑committee approached their decision or the process by which it was made. The correct appeal of such issues lies by way of judicial review.
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Burton J
• Hope and Glory tried to reawaken the dichotomy. How can there be a genuine hearing de novo if the task is to decide whether the licensing authority got it wrong.
• Burton J disagreed.
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Burton J said:
It is a fresh appeal with fresh evidence. However there is this caveat, this stricture, this limitation, imposed by the Court of Appeal and the Divisional Court, both of which are binding upon me, that the conclusion of (in this case) the District Judge, having heard all the evidence, including fresh evidence, will be whether, in the exercise of considering the appeal, he is satisfied that the judgment below is wrong.
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Burton J also:
• Rejected the idea that this is contrary to Article 6
• Dismissed the notion that Sagnata is confined to “policy” cases
• Embraced the concept that a decision could be wrong now, having regard to the fresh evidence, even if it was not wrong at the time.
• Stated that the Court must not ignore the authority’s decision, or even “pay regard to it.” It must do more, and consider whether it was wrong.
• Therefore, it is for the appellant to go first.
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Court of Appeal
• In the Court of Appeal the arguments were re-run.
• The result was the same.
• The judgment of the Court was delivered by Toulson LJ.
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The issues
Given that the Appellant conceded that the licensing authority’s decision was relevant, the Court of Appeal found the issues were narrow.
• How much weight should the decision receive?
• Is the task of the appeal court to decide whether the decision was wrong?
• If so, is that Article 6 compliant?
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Weight
The Court of Appeal decided that the appeal court should pay “careful attention” to the reasons for the decision, bearing in mind that it comes from the duly appointed licensing authority.
However, how much weight the decision should receive depends on the circumstances, including
• The nature of the issue
• The nature and quality of the authority’s reasons
• The nature and quality of the evidence on appeal
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The test
• The Court of Appeal agreed that the test is whether the decision was wrong.
• That involves more than just paying regard to it. • Therefore the Appellant should start.
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Article 6
• The Court found that the appeal mechanism amply satisfied Article 6.
• Nothing in domestic or Strasbourg case law says that it is incompatible with Article 6 for an appellant to have the burden of establishing his complaint.
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Postscript
• The Court of Appeal doubted whether the District Judge was correct that the way in which the authority approached its decision or the process which it adopted was simply irrelevant on appeal.
• Although those matters could be dealt with by judicial review, they were not necessarily irrelevant on appeal.
• However, no concluded view was expressed by the Court of Appeal on the topic, and this therefore remains a live question.
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The effect of the judgment
• The Court of Appeal’s judgment is resounding.
• It means that the decision of a licensing authority will not be overturned unless it is wrong.
• Furthermore, the appellant has the burden of establishing this, and so should go first.
• This gives great protection to licensing authorities’ decisions.
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The importance of reasons
• The Court of Appeal’s judgment makes the reasons given by the licensing authority central to the process.
• It stated:
“The fuller and clearer the reasons, the more force
they are likely to carry.”
• An authority which takes the trouble to express its reasons fully and properly will therefore enhance its prospects of surviving an appeal.
