Case No: CO/2004/2002
Neutral Citation Number: [2002] EWHC 1202 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, 
London, WC2A 2LL

Tuesday 18th June 2002
Before :

THE HONOURABLE MR JUSTICE LIGHTMAN

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Between :
	MARK CARTER-PASCOE	Appellant	
	
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(1) BIRMINGHAM JUSTICES
(2) WEST MIDLANDS POLICE	

Respondents	

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040,  Fax No:  020 7831 8838
Official Shorthand Writers to the Court)
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Mr John Saunders QC (instructed by Hammond Suddards Edge, Rutland House, 148 Edmund Street, Birmingham B3 2JR) for the Appellant
The Respondents were not represented and did not attend
Hearing dates : 18th June 2002
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Judgment
As Approved by the Court

Crown Copyright ©

Mr Justice Lightman: 
INTRODUCTION
1.	This is an appeal by way of Case Stated from a decision of the Birmingham Licensing Justices dated the 14th December 2001.  At issue are the construction and application of section 74 of the Licensing Act 1964 (“the Act”).  The Appellant Mr Carter-Pascoe, the licensee of licensed premises known as “Hidden”, Kotwall House, 1 Ladywell Walk, Wrottesley Street, Birmingham (“the Premises”).  The Respondents, the Justices and the West Midlands Police (“the Police”), are unrepresented.
FACTS
2.	The Appellant on the 14th November 2001 applied to the Justices for a General Order of Exemption (“an Order”) under section 74 of the Licensing Act 1964 entitling him, in addition to normal permitted hours of opening, to open part of the Premises each Wednesday to Saturday between 2.30 a.m. and 7 a.m. and each Sunday between 1 a.m. and 7 a.m.  The part of the Premises in question was the ground floor bar, which has a maximum occupancy of 280 persons and a basement bar which has a maximum occupancy of 50 persons.
3.	Section 74 so far as relevant reads as follows:
“(1)	Subject to the following provisions of this section, justices of the peace may—
(a)	on the application by the holder of a justices’ on-licence for premises situated in the immediate neighbourhood of a ... place where people follow a lawful trade or calling, ... make [an Order] adding either generally or for such days as may be specified in the Order, such hours as may be so specified to the permitted hours in those premises.
(b)	Justices of the peace shall not make a general order of exemption unless satisfied, after hearing evidence, that it is desirable to do so for the accommodation of any considerable number of persons ... following the trade or calling.”
4.	The Appellant applied to the Justices for an Order to provide facilities for members of the entertainment/leisure industry to obtain refreshment after the conclusion of their work.  These members could number 1,200 persons and each of whom under the proposed Order could bring with them one guest.  Subject to certain provisos the police had no objections.  But nonetheless the Justices refused the application.  Mr Carter-Pascoe thereupon appealed and required the Justices to State a Case which they have done.
5.	The material contents of the Statement of Case read as follows:
“It was submitted on behalf of the police (by letter from Inspector Keith W Arnold, Licensing Inspector for Central Birmingham) that there were no police objections to the application subject to the following provisos:
(a)	Membership: that membership be restricted to bona fide employees of premises involved in the entertainment/leisure industry and employed in the area based on Hurst Street.
(b)	Visitors: visitors be restricted to one per guest per members at any one time.
(c)	Access: access be restricted by means of a physical presence or controlled door locks to prevent any non-member from gaining access to the premises.
(d)	Overcrowding: it is calculated that up to 1,200 persons could be eligible for membership.  As the parts of the premises intended for this use have a Public Entertainment Licence capacity of 330, care must be taken to ensure that no time is this capacity exceeded.
...
11.	We were of the opinion that:
(a)	The Applicant was the holder of a justices’ on-licence, and therefore was a person eligible to apply for a general order of exemption.
(b)	Persons employed in the entertainment/leisure industry could be persons who follow a lawful trade or calling.
(c)	The premises are in the immediate vicinity of the Hurst Street area where those persons are carrying on this lawful trade or calling.  As a consequence we were satisfied that we were empowered by section 74(2) of the Licensing Act 1964 to make a General Order of Exemption if we were satisfied that it was desirable to do so.
(d)	Having found that the Appellant was eligible to apply under section 74(2) we had a discretion as to whether to grant the application.
(e)	The maximum occupancy level for the ground floor bar and the basement area totalled 330 persons and that the potential membership of the club was in excess of 1,200 persons each of whom would be entitled to bring one guest on any occasion.  This could mean that 2,400 people would be entitled to request entry to the premises on a particular evening.  This is in addition to those persons seeking to use the upper floor.  Therefore, substantial numbers of persons (in theory up to some 2,000) could be refused entry to the premises on the basis that the occupancy level had been reached.
(f)	As the persons wishing to gain entry would be leaving their places of employment in the immediate locality at around 2.30 am there is a potential for a large number of persons congregating in Wrottesley Street seeking to enter the premises.  A large number of these may be refused entry.
(g)	There are already a large number of persons in the Wrottesley Street area at 2.30 am when the majority of the premises in the area close.  Some of the persons leaving these premises are likely to have consumed a substantial quantity of alcohol.  A large number of the persons in the area are also likely to be waiting for taxis or other transport very near to ‘Hidden’.
(h)	We were of the opinion that if the General Order of Exemption were granted, there would be another large group of people coming into an already congested area.  Those members of the public leaving the other premises in the area will see that there are 2 classes of people entering ‘Hidden’.  Some of these will be going upstairs where there is no alcohol being served and to which anyone may have access subject to the entrance fee and occupancy levels.  Others will be going to the members only club where alcohol is available.
(i)	Notwithstanding that we did not doubt the Appellant’s ability to control persons in the premises, we were of the opinion that it was not desirable to grant a general order of exemption due to a significant risk of a public order problem within the locality arising from the factors outlined above.
(j)	Accordingly we refused the application.
12.	The question for the opinion of the Honourable Court is:
‘Was there any evidence form which we could properly find that there was a significant risk of public disorder if the application was granted.  And having found that there was such a significant risk, were we entitled to conclude that the granting of the application was not desirable?’
6.	Paragraph 11(d) and the second question stated in paragraph 12 reveal an error on the part of the Justices as to the scheme of section 74 of the Act.  Section 74(1) by the use of the words “may make” confers on the Justices a power to make an Order and a very wide discretion whether to do so.  Section 74(2) however makes it a condition precedent to the exercise of such power that it is established by evidence that it is desirable to do so for the accommodation of a considerable number of persons following the lawful trade or calling.  Accordingly (a) the provision relating to desirability in section 74(2) goes to the existence of the jurisdiction to make the order; it is not a critical feature in the decision-making whether to exercise the discretion conferred by section 74(1); and (b) the question whether there is a serious risk of disorder is not relevant in deciding whether it is desirable to provide the accommodation and accordingly whether the condition precedent to jurisdiction to make the General Order in section 74(2) is satisfied; it is one of an infinite number of potentially relevant factors in deciding whether the discretion conferred by section 74(1) should be exercised.  The Justices accordingly misdirected themselves in their decision.  They should have focused on the general discretion conferred by section 74(1) of the Act, and not section 74(2).  The second question which they raised in the Case Stated should have read as follows:
“were we entitled to conclude that we should not exercise our discretion to grant the licence.”
7.	I have no doubt that, if (properly directed) the Justices decided that the grant of the licence would give rise to a significant risk of public disorder, they were entitled to refuse to exercise their discretion conferred by section 74(1) of the Act to make the Order on this ground.  Because of their misdirection, the Justices however did not address the correct section and question.  I think that this case should be remitted to them to determine by reference to section 74(1) in accordance with the guidance provided in this judgment.
8.	I turn to the first question which is whether the Justices could properly find that there was a significant risk of disorder of the application.  The challenge to the decision made by the Appellant is twofold.  First it is said that it was not open to the Justices to reach the conclusion in the light of the position taken by the Police.  The Police did not object to the application provided that the matters referred to were dealt with and these matters were dealt with to their satisfaction.  It is contended that, as the authority who have to deal with public order problems do not foresee any risk of disorder, the Justices should be slow to disagree.  The Justices should at least have insisted on hearing evidence from the Police so that their own concerns could be tested out and further investigated.
9.	In my view the Justices are perfectly entitled to form their own view on whether there was a significant risk of a public order problem.  They are not bound by any view taken either way by the Police, though they must plainly take that view into account and give it proper weight.  But, if they were minded to disagree with the view of the Police, they were bound to intimate to the Appellant that they were considering acting in this way and put the Appellant on notice that this was a possible outcome of the proceedings in order to obviate the risk that he might be taken by surprise.  It would then be open for the Appellant to meet this possibility by adducing evidence directed to this issue.  In this case I am given to understand that there was no such intimation and the Appellant was taken by surprise, and that if such an intimation had been given, the Appellant could and would have adduced further evidence in this regard.  In the circumstances, the requirement for a fair hearing demands that I remit the case to the Justices for redetermination in the light of any further adduced evidence on the issue of risk and indeed (since the issue of discretion will be re-opened) evidence generally relating to the exercise by the Justices of their discretion.
10.	I should add that the Appellant complains that the Justice placed undue weight on the difference between the number of persons eligible to enter the proposed club and the number of persons who could be accommodated (a difference invariably true of any licensed premises) and did not give sufficient weight to the ability of the Appellant to control numbers and entry into the proposed club.  I do not think that there is any substance in these complaints: these were matters to be evaluated by the Justices and their Statement of Case does not suggest that no sufficient consideration was given to them.  No doubt on reconsideration of this case the Justices will make plain (if not already plain) their position in this regard.
11.	I accordingly answer the reformulated questions as follows:
a)	I answer the first question in the affirmative, but I hold that the case should be remitted for reconsideration in the light of any fresh evidence which may be adduced;
b)	as to the second question, it should be reformulated to read:
“If we find that there is a significant risk of public disorder, are we entitled to conclude that we should not exercise our discretion to grant the General Order.”
	And I answer the second reformulated question in the affirmative.
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MR JUSTICE LIGHTMAN: For the reasons set out in the judgment which I have handed down I direct that the matter be remitted to the magistrates to reconsider in the light of the contents of my judgment.
MR SAUNDERS: I am obliged, my Lord.
MR JUSTICE LIGHTMAN: Thank you very much for your help.