Ouseley J in High Court CO/829/2017 R v Guildford Crown Court following Simmonds v Guildford Borough Council - Transcript of proceedings and order
CO/829/2017
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Mr Mark Rostrum (a lay speaker) appeared on behalf of the Claimant
Mr Philip Kolvin (instructed by Guildford Crown Court) appeared on behalf of the Defendant
Crown copyright©
MR JUSTICE OUSLEY: Which of you is Mr Rostron?
MR ROSTRON: Mr Rostron, sir.
MR JUSTICE OUSLEY: I have read your application. I am prepared to hear what you have to say.
MR ROSTRON: Thank you, sir. Well, I did submit several pages, six pages, of reasons why our application -- well, if I can start from --
MR JUSTICE OUSLEY: What you sent in was a judgment of Judge J going back to 1994, which I have not had the opportunity of reading. I am not sure what else I have got that you sent up.
MR ROSTRON: When the application --
MR JUSTICE OUSLEY: I have a skeleton argument from Mr Kolvin.
MR ROSTRON: Yes. When the application for this hearing was made there was a six-page document submitted with it which set out the reasons why we felt Wyn Williams J --
MR JUSTICE OUSLEY: I should have it. Just let me see.
MR ROSTRON: I think it is quite important that it is before you, sir. If it has not been in fact put before you then --
MR JUSTICE OUSLEY: "Grounds for seeking reconsideration". Yes, I have that and I have read that.
MR ROSTRON: You have read that the six pages, sir.
MR JUSTICE OUSLEY: Yes.
MR ROSTRON: Well, from Mr Simmonds' point of view, I think that sets out the situation in sufficient detail, sir, and if you have had a chance to read that --
MR JUSTICE OUSLEY: Can I just ask you a few points?
MR ROSTRON: Yes, sir.
MR JUSTICE OUSLEY: Although I am going to allow you to appear, I am not going to allow you to pursue most of the points you wish to raise, including allegations of bias and so on and the allegations against the judge personally. Those allegations are not going to be pursued by a litigant in person or an unqualified representative. If those allegations are going to be made, they have to be made by somebody who is subject to a professional obligation not to make them unless there are proper grounds.
The point that I am going to allow you to pursue, not necessarily to a full hearing, but the point I want to examine is this. Mr Recorder Malins said he had no jurisdiction, as I understand it, to hear your appeal, because it was an appeal against the policy. What I want to understand, and I am not sure I really do have a picture, is what in fact you want to say about the policy. I will tell you why I want to know. You are not going to be allowed to turn the Crown Court into the Administrative Court. You cannot challenge the lawfulness of the policy before the Crown Court. You have to challenge that before this court.
As you have not challenged it, it has to be taken, as Mr Kolvin I think said in the course of the hearing, to be a lawful policy. As if I might say it plainly is on its face, but what did you want to say about the condition imposed on your licence requiring you to be liveried? What actually were you -- and I am never really sure I saw it emerge -- going to say about why the condition should not have been imposed that you say you were prevented from saying because of the jurisdiction?
MR ROSTRON: If I may just briefly interpose, the original complaint by Mr Simmonds was under Section 47 of the Local Government (Miscellaneous Provisions) Act which gives him a statutory right to object to any licence condition. It does not matter what the Council's policy is. We are not concerned about the council's policy. We are not seeking approval or disapproval of that. Lots of councils make licence conditions about all sorts of things to do with taxis and taxi drivers are quite entitled, if they want to if they object and if there are reasonable grounds for objection, that is if the council's conditions are not reasonably necessary, are quite entitled to go to the Magistrates' Court and apply to have those changed or removed from their licences.
Mr Simmonds has no not had the benefit of that hearing at any stage in this process. That has not been heard by any Magistrates' Court or the Crown Court or --
MR JUSTICE OUSLEY: I understand that, which is why I am trying to get to this point. What would you have said if the judge had said to you "Okay. You say that livery condition is not reasonably necessary. Why do you say that"?
MR ROSTRON: Quite simply, sir, that when the council made the policy decision to introduce the livery they cited a number of grounds for introducing that policy decision and the principal was one public safety.
MR JUSTICE OUSLEY: Yes.
MR ROSTRON: And they said that livering the taxis in Guildford Green would make the public more safe and they particularly bore in mind the unfortunate situation of Rotherham taxi drivers and Council where taxi drivers had been abusing young children. That was the principal reason, sir. They had other reasons, but they were ancillary and of no great weight from our point of view.
What Mr Simmonds says is that livering his taxi does not make anyone safer and that in fact Rotherham City Council had already liveried their taxis before the offences in Rotherham took place. The act of livering taxis had no beneficial effect to the citizens or the young ladies of Rotherham at all.
On that simple ground, this imposition of this very expensive and unnecessary livery is not reasonably necessary and that is all Mr Simmonds has to show. There is no reason or necessity for having it. Many councils, surrounding councils, Woking Borough Council, Aldershot District Council, none of the surrounding councils have livery in their taxis and there is no suggestion by anyone that the public are at risk of any harm at all because of that. That is putting it at its simplest, sir.
MR JUSTICE OUSLEY: Yes. So the lawful policy should not be applied to him. Most taxis are liveried.
MR ROSTRON: Exactly, sir.
MR JUSTICE OUSLEY: He was going to say "It is not reasonably necessary for me, even though I understand that most other drivers have been liveried."
MR ROSTRON: At the stage in fact most other drivers have not been liveried. At the stage when these proceedings where actually fought originally, which was some time ago, very few of them had.
MR JUSTICE OUSLEY: The policy will have its effect, because a number of people will not take issue with it.
MR ROSTRON: I think Mr Simmonds' point is that what the Act of Parliament says and what has been held in the Red Cab v Blackpool City Council, which is the leading case on licensing appeals against licence conditions is that every individual driver has a right to appeal.
MR JUSTICE OUSLEY: Yes.
MR ROSTRON: They can all come before the magistrates one after another.
MR JUSTICE OUSLEY: This is the document you have just handed up this morning.
MR ROSTRON: Yes, sir.
MR JUSTICE OUSLEY: Where is your point?
MR ROSTRON: On that point, sir, if you turn to page 5 of the case Red Cab v Blackpool City council and starting at about line 40 the judge Justice Judge goes on there to say:
"It is also right that the conditions are of importance to a large number of individuals. It is suggested that if the case is left to the magistrates there may be a series of appeals by large numbers of individuals and the risk of inconsistent results. I am bound to say that I do not regard that as a practical difficulty. If one applicant in each category were to have succeeded before the magistrates then the condition would be amended for all who have abided by it."
That was the practical point Justice Judge made on that point and on the --
MR JUSTICE OUSLEY: Was there a policy in that case?
MR ROSTRON: Yes, there was, sir. There was a policy.
MR JUSTICE OUSLEY: What was the policy?
MR ROSTRON: The policy in that case was to -- it was actually to do with private hire vehicles and the policy there was to attach a condition to private hire vehicle licences that they were not able to park in certain places in Blackpool where it was felt they would be able to attract the attention of public hire. So there was a policy in that case and, if I may go on, sir, I think the difficulty with this case stems from the fact that very few cases about taxi licences make their way to the High Court so there are very few, because they are usually settled in the Magistrates' Court or the Crown Court, so there are very few cases of precedent. This happens to be one, Red Cab v Blackpool Borough Council, and, unfortunately, the leading book on taxi law, Button's Law on Taxis, relies on a different case which I have referred to in the six-page document which is Westminster City Council v Middlesex Crown Court, which is not to do with taxi licensing at all, sir.
MR JUSTICE OUSLEY: I am not sure that it matters overly, does it, what the topic of licensing is? The question in that legislation was materially the same as this. There was a right of appeal, was there not?
MR ROSTRON: Could I make the point that I would like to make?
MR JUSTICE OUSLEY: Yes.
MR ROSTRON: There are two things wrong with that reliance on that case. The first is that that case was brought under the Licensing Act 2003 which is not the Local Government (Miscellaneous Provisions) Act.
The second point about is that what the judge in that case said was overruled obiter by Toulson LJ in the case which I have referred to in the documentation which I sent to you where he said absolutely contrary to what is said in the leading case of the law book. The law book says, "The remedy if there is a policy is to the Administrative Court for a judicial review". Toulson LJ said, "On the contrary, the remedy is to go to the Magistrates' Court and use the remedies that are available under the Local Government (Miscellaneous Provisions) Act."
MR JUSTICE OUSLEY: This was your paragraph in Hope And Glory?
MR ROSTRON: In the six pages that I have sent to you, sir.
MR JUSTICE OUSLEY: No, no. In the Hope and Glory case, which is what you were citing.
MR ROSTRON: In the Hope and Glory case they refer to -- let me see where I can find it now. Yes, it is paragraph 21 I think that is in the -- I think that is the right case, the Hope and Glory case. That is the one where "How should a Crown Court and Magistrates' Court approach an appeal where the council has a policy?" City of Westminster I think is the one.
MR JUSTICE OUSLEY: That is City of Westminster. You say what Scott Baker J said in that case was disapproved in the Hope and Glory case.
MR ROSTRON: Yes, sir.
MR JUSTICE OUSLEY: That is what I am trying to find.
MR ROSTRON: Yes, sir. I see in the Hope And Glory case. In the Hope and Glory case where Toulson LJ at paragraphs 51 and 52 --
MR JUSTICE OUSLEY: That does not really address the point. The point is the one which Scott Baker J raised. You may say he was wrong.
MR ROSTRON: Mm-hm.
MR JUSTICE OUSLEY: But the point is the one Scott Baker J raised. What happens when you go under section 27 before a magistrate and your objection is not to something peculiar to this particular applicant? He is not saying I deserve an exception to the policy. There is a policy of general application and what he is saying is, in effect, I do not like the policy. Section 47, "The District Council may attach the conditions it considers reasonably necessary." It has done so. You are aggrieved and you now appeal to a Magistrates' Court. I do not have any particular provision in mind which says what a Magistrates' Court powers are in this case and I am not sure what it says.
MR ROSTRON: May I assist you there? It is under section 200. I think it is in the list of documents that I sent to you.
MR JUSTICE OUSLEY: I do not have my own retrieval method. I have done my best with some of the authorities here, but you are supposed to provide them.
MR ROSTRON: It is page 2 of the bundle.
MR JUSTICE OUSLEY: Of your bundle.
MR ROSTRON: Page 2 of the six pages I sent to you. It says, "Section 77 appeals..." This is section 77 from the Local Government (Miscellaneous Provisions) Act.
MR JUSTICE OUSLEY: But what does it say?
MR ROSTRON: It says as follows, sir, "Sections 300 to 302 of the Act of 1936..."
MR JUSTICE OUSLEY: So it is 302 you are looking at.
MR ROSTRON: Yes, sir. That gives Mr Simmonds the right to appeal a Magistrates' Court.
MR JUSTICE OUSLEY: I am not taking issue with that, but is there any statutory provision which says how the Magistrates' Court should approach section 47. You have an appeal. It goes before the magistrates under section 47. Section 302 deals with what happens if they reverse the council, but I am not talking about that. I am talk being the intermediate stage. Is there something which says a Court shall only reverse the decision of the council if it considers that the council was unreasonable, was wrong? Yes, Mr Kolvin.
MR KOLVIN: My Lord, there is no statute, but there is a leading case on the topic, which is the Hope and Glory case.
MR JUSTICE OUSLEY: It is Hope and Glory.
MR KOLVIN: Which says that in all of these licensing appeals there is a hearing de novo, but at the end of it the Magistrates' Court has to consider whether upon the evidence it hears the decision of the licensing authority is wrong. The decision of the licensing authority being the decision of the duly elected licensing authority is not to be lightly reversed (inaudible words) and all those cases.
MR ROSTRON: Yes, sir. The difficulty with that case is that that test of wrongness is applied to cases that are brought before the Court under the Licensing Act 2003. That was the case which Mr Kolvin is referring to. In the case of Mr Simmonds' licence his appeal is under the Local Government (Miscellaneous Provisions) Act and what the Act says is that the council can only apply a licence condition if it is reasonably necessary. The appeal is not the test of whether an appeal can be allowed. It is not whether the council is wrong, as Mr Kolvin suggests. It is not the council. The test is whether the licence provision was reasonably necessary. So, it is a different test. I am afraid the case which he relies on does not help in the Local Government (Miscellaneous Provisions) Act context.
MR JUSTICE OUSLEY: I am sorry. I am afraid you are off the point there. The point is the council can impose it if it considers reasonably necessary. You appeal to the Court. Does the Court say did the council consider it reasonably necessary? Does the Court say did the council reasonably consider it to be reasonably necessary? Does it say I consider it to be reasonably necessary, bearing in mind that the person with the day-to-day responsibility is the local authority? Does it say there is a policy and I cannot touch it? Does it say I must forget about anything the local authority has gone through and I must hear evidence directly as if I were conducting a trial? I mean those are the issues to which the Hope and Glory case was directed.
What you are saying is there is not any authority at all on how a Magistrates' Court should approach the licensing appeal under section 47, which is different you say from all the others. I very much doubt that.
MR ROSTRON: If I may, sir, on page 3 of the documentation which I sent you from the Blackpool case, Red Car v Blackpool case about line number 17 Justice Judge specifically goes through the procedure which is applicable.
MR JUSTICE OUSLEY: Page?
MR ROSTRON: Page 3.
MR JUSTICE OUSLEY: Of his judgment?
MR ROSTRON: That is page 3 of his judgment, sir. Page 3 of 9.
MR JUSTICE OUSLEY: What paragraph?
MR ROSTRON: Line 19, sir.
MR JUSTICE OUSLEY: Yes.
MR ROSTRON: Justice Judge goes through and lays out specifically how the Court is supposed -- how appeals under the Local Government (Miscellaneous Provisions) Act are to be dealt with by the Court and how they are to be brought. He says that the Local Government (Miscellaneous Provisions) Act gives very wide powers to the borough council to grant licences under section (inaudible) and they may grant licences, but then he goes on to say at line 43 of the same thing:
"The applicants were all provided with a statutory right of appeal to the Magistrates' Court against the conditions which the borough council proposed to impose on licence."
This is notwithstanding that these licence conditions were also a policy in that case, sir. This Justice Judge is saying that the licence condition, whether it is a policy or not, that the applicant, the appellant, in this case Mr Simmonds, has the right to appeal through the statutory means and not only that. He actually, what he actually -- the gist of what he says in this case, sir, is that it was wrong for the -- this licencee in Blackpool brought a case by means of judicial review, which is what Mr Kolvin is suggesting should have been done in the first place, and Judge J says that is the wrong way to do it. You should exhaust the statutory appeals route first before you go to judicial review.
MR JUSTICE OUSLEY: What troubles me about what you are telling me is that at the end of it you go back to the question I wanted to address at the start. What is it you want to say? You want to say that the condition was not reasonably necessary for taxi drivers in Guildford.
MR ROSTRON: It is nothing to do with the people. With respect, sir, it is nothing to do with people in Guildford. Mr Simmonds' licence, he has the right given by Act of Parliament if someone tries to impose a condition on his licence he can appeal and that is --
MR JUSTICE OUSLEY: I am sorry. He has the right to appeal. That is not at issue. You say here he was told by the judge he effectively could not appeal because there was a policy.
MR ROSTRON: Yes, sir.
MR JUSTICE OUSLEY: But the question still comes back, for the purpose of deciding whether there is anything in this case, what was he going to say if the judge had said, okay, what do you want to say? As you tell me, he says he wants to say the condition is unnecessary and, as far as I understand it, it is not because it is unnecessary for Mr Simmonds. It is because it is unnecessary for anyone.
MR ROSTRON: That may well be the case, but that is not the point Mr Simmonds was making, sir. Mr Simmonds only has --
MR JUSTICE OUSLEY: That is the first question that is going to be put to Mr Simmonds. If he is pursuing an appeal, you come before the Recorder and he says to you what is your case? He says I do not like the condition. Are you saying that is because of something particular to you or are you saying that is because there is no need for it in Guildford?
MR ROSTRON: Yes, sir, and he was asked that question.
MR JUSTICE OUSLEY: What is the answer?
MR ROSTRON: There were several hearings and the answer is he is appealing against a condition on his licence, which he is entitled to do, because the condition is not --
MR JUSTICE OUSLEY: A judge is going to get pretty shirty with you if upon being asked a straight question you prevaricate like this. Is he going to say it is an exception, because he has a particular reason, or is he going when confronted with it to be saying my reason is good so far as I am aware for the other taxi drivers in Guildford?
MR ROSTRON: Sir, the two things go hand in hand. He does not have to show anything about anyone else's licence. All he has to deal with is his licence. As Justice Judge said in his case, which I referred to you before on page 5, it may well be that a long succession of drivers come to the Magistrates' Court and say the same thing and it turns out that council's policy is unenforceable as it was in the case of Red Cab, but that is ancillary. The question Mr Simmonds was asked by the Magistrates was "What are you complaining about?" and he said "I am complaining about the condition attached to my licence, because it is not reasonably necessary" and that is all he has to do.
MR JUSTICE OUSLEY: I am afraid that is simply a misunderstanding of how the case would actually evolve and properly evolve. The next thing that would happen when you persist in that is that they will be faced with this problem. How do they weigh the conclusion of the council, which is the issue that Scott Baker J dealt with, and the issue that the Hope and Glory case dealt with, but what do you say should be the answer to that?
MR ROSTRON: Well, there are suggestive cases, because, as I said earlier on, most of taxi driver licensing cases do not find their way to the High Court. They do find their way to the Crown Court, sir, and there are reported cases which show how that matter is dealt with and the case which is most relevant is Durham City Council v Fits(?) which was heard in Newcastle Crown Court where the Crown Court Judge was faced with dealing with exactly the same point about a livery requirement for Durham City council taxis to be liveried in white. The driver objected and the Crown Court Judge in that case went through the council's reasons, supposed reasons, why the livery was reasonably necessary and found that the livery condition was not in fact reasonably necessary and he held that and Durham City Council had to withdraw their livery condition. There have been a number of such cases up and down the country, but, unfortunately, they do not make their way into the High Court thing. That case is included in the bundle, sir. I hope you have had a look.
MR JUSTICE OUSLEY: I have looked at your cases.
MR ROSTRON: Had an opportunity to look that, sir.
MR JUSTICE OUSLEY: Yes. Thank you very much.
MR ROSTRON: Can I just --
MR JUSTICE OUSLEY: No.
MR ROSTRON: Right.
MR JUSTICE OUSLEY: These cases are only listed for a short period of time. I would like to hear what Mr Kolvin has to say.
MR KOLVIN: I am going to take this very briefly. Mr Rostron is right. Mr Simmonds had a right of appeal. When the appeal is determined, the Court must apply Hope and Glory and ask itself where the decision of the licensing authority is wrong. Because this was a policy case, it must stand in the shoes of the licensing authority for the purpose of applying the policy. This was the stumbling block. No exception to the policy was being suggested. The genuine ground of appeal was that Mr Simmonds just did not like the policy. He just did not want to have a livery.
Mr Rostron says, well, Hope and Glory really does not apply in a non-Licensing Act case. Hope and Glory followed the decisions of the Court of Appeal in Sagnata [1971], which was a gaming case, and the decision of the Divisional Court in Stepney Council v Joffe, which was a street-trading case. These decisions are of general application as to how appeals are determined.
He relies on the case of Blackpool where Judge J looked at certain conditions and said that the matter must be dealt with by way of appeal and not by way of judicial review. It does not assist him, because the Blackpool case was not a policy case at all. In any case, all that Judge J was doing was saying that when there is a statutory appeal against a licence condition the appeal must be brought to the Magistrates' Court, which takes us straight back to the propositions I have just advanced; Hope and Glory and so forth.
He also says that what Scott Baker J says about policy in Middlesex was impliedly overruled by Toulson LJ in Hope and Glory, which is also incorrect. What Toulson LJ was saying in Hope and Glory was that in a magistrates' appeal the magistrates, as well as dealing with evidential errors below, would also deal with any legal errors which were made below in deciding whether the decision was wrong. In any event, that was obiter, but it does not affect the proposition here as to how an appellate Court has to handle itself when dealing with the duly adopted policy of a licensing authority.
Just finally, the decision in Durham, which was a Crown Court decision, and very briefly it appears from the judgment that the judge in Durham was referred to a number of cases on licence policy, but does not give any reasons at all for why the decision of Scott Baker J in Westminster City Council was not applied. It is simply something we would say cannot be relied on here, since it is quite apparent that the judgment of Scott Baker J is to how a policy is handled, which in turn relied on varies other cases about how a licensing policy is handled on appeal. It is the leading case on the topic.
My Lord, I am not saying anything more here than I have tried to explain to Mr Rostrum in other places. The problem was that after two years then council adopted a policy about livery to protect the public and Mr Simmonds does not like the policy, but that does not give him a valid ground of appeal.
MR JUSTICE OUSLEY: Yes. I am not entirely happy with the state of play on this. I am not going to call upon Mr Rostrum again. I am just going to explain what troubles me. There is a right of appeal which is seemingly unfettered. That is to say you appeal against the decision that a condition is necessary. The existence of a policy does not seem to me obviously a bar to that right of appeal and policies come in all shapes and sizes. Some have a more careful origin than others.
I am troubled by what is meant by standing in the shoes of the authority if it requires an individual to say "I do not like the policy for reasons peculiar to me" as opposed to "I do not like the policy as it is applied". Others may make exactly the same point. You have the line taken by the Durham City case, which is I appreciate not binding, but it illustrates the alternative approach. The line taken by Scott Baker J. I think that is an issue that somewhere along the line needs to be tested, because to treat it as a jurisdiction issue, as the Recorder did, I think at least merits some examination. The question is how it is best to resolve that. I think there is an issue that a higher Court ought to examine here.
I am entirely satisfied that all the other points are completely hopeless. As I said, Mr Rostrum, I do not intend to allow the personal attacks on the judge to proceed at all, but that is not to say -- if I just turn up his grounds. I am looking at "Summary argument for Crown Court". Possibly it might be in his bundle page 2 of 49 read with bundle page 34 of 49. It is his first point and his seventh point on page 2 of 49. If I turn to 34.
MR KOLVIN: Sorry. I was on page 34.
MR JUSTICE OUSLEY: I was dealing with 2 of 49 points 1 and 7 of that one. Can I try and find 34? 34 of 49 was argued before the Crown Court. It is really related to points 2 and 3, but I think probably it is easiest to look at it as points 1 and 7 on page 2 of 49.
MR KOLVIN: Yes, it is the interplay between the policy and the application --
MR JUSTICE OUSLEY: What is the role of a Magistrates' Court where there is an appeal which is cast as an appeal about not challenging the lawfulness of what is perfectly lawful policy, it perfectly possible for them to have a policy of imposing such conditions, but what is the role of a Court when facing a lawful policy? Is it really obliged simply to pretend it is the local authority, as Scott Baker J suggests, or can it do as Durham suggests? This what Mr Rostrum suggests. That is to say it can expect evidence to be called justifying it rather than simply "We have got our policy through"; evidence justifying it. Although there is no doubt in my mind that the question of what happens to the policy, one, is released not as an exception will be very powerful. It may be that it is the Hope and Glory approach. Is the authority wrong? But that is not quite the same as the Scott Baker approach, which is "What did the local authority say?"
Having identified the ground, is that a matter that is best proceeded with by way of case stated or is it a matter that is best proceeded with by turning this into a judicial review and requiring focused grounds to be produced and focus required or requiring them to be done as a condition of a grant of condition?
MR KOLVIN: Can I have one more go at it to try and answer the question?
MR JUSTICE OUSLEY: Yes.
MR KOLVIN: Mr Lord, the way the law works in licensing is that where the council has a policy, and it is possible for a council to have a strict policy, even of refusal, not just of the application of conditions, it is then for the applicant to come along and demonstrate why his case ought to be an exception to the policy. He bears the burden.
The test which is applied, not only through Middlesex but the judgment or Turner J in the case of Sheffield City Council v Considine et cetera is that, in order for there to be an exception, the applicant needs to demonstrate why an exception can be granted to him without imperilling the policy or the reasons underlying the policy.
MR JUSTICE OUSLEY: Where is there a case, other than the Scott Baker case, which says that that is the right approach on an appeal? I understand you can demonstrate there is an exception.
MR KOLVIN: Yes.
MR JUSTICE OUSLEY: It appears not to be Mr Simmonds' approach.
MR KOLVIN: Yes.
MR JUSTICE OUSLEY: I understand it is for the appellant to demonstrate that the conditions are necessary rather than the authority to prove that it is, but that does not seem to me to grapple entirely with the issue as to how far he can go in coring evidence from users to say it has made no difference to us. We do not care what the livery is. Sort of like they did in Durham.
MR KOLVIN: That then in essence becomes a challenge to the policy.
MR JUSTICE OUSLEY: Yes.
MR KOLVIN: The policy then becomes so much paper as opposed to something which is supposed to guide the decision-maker in the exercise of their discretion.
MR JUSTICE OUSLEY: That is exactly the issue as to whether Scott Baker J's approach is right to be as rigid as it appears to be, or is interpreted as being, or whether it is a potent factor, whether it is a completely clear playing field, which appears to have been the Durham approach.
MR KOLVIN: Yes. The clear playing field is clearly not the law. The potency of the factor depends on the mode of expression of the policy. If there is a challenge to the rationality of the policy or the legality of its adoption or the consultation process, then that is to be brought by way of judicial review. If, on the other hand, the policy is clear and in this case there is no point having a livery condition unless it is going to be of general application. Where the policy is clear that this is to be the policy of the licensing authority, then the question for the appellate court becomes is the licensing authority wrong to have applied its own policy to this case? If you do not like the policy then the place --
MR ROSTRON: May I just make one point, sir?
MR JUSTICE OUSLEY: Just a minute. What is the authority that says that that is the right approach?
MR KOLVIN: I can only tell you that the leading authority is the case of Scott Baker J in the Middlesex case. Can I just check whether cited in that cases are the cases which were cited to Scott Baker J? He relied on the judgment of Turner J in a case called Sheffield Crown Court ex parte Considine who had in turn relied on the judgment of Glidewell LJ in the Divisional Court decision of Chester Crown Court ex parte Pasco and Jones. Both of those cases were old cases from the 1990s and 1980s respectively.
There was a fairly respectable line of authority. I do accept not Court of Appeal authority, but consistently applied. I have to say just from day-to-day experience this test is applied with very great regularity in relation to some quite tough policies within London where local authorities have decided that there are such stressors on the public realm that there are ought to be a presumption against having further alcohol licences and that the Magistrates' Court simply apply the policy as though they were the licensing authority.
MR JUSTICE OUSLEY: I want to have this issue properly ventilated. I am not sure that it has been. I am not going to grant permission at this stage. I think that the issue requires a deal more clarity. What I intend to do is to order the proceedings to stand at the moment as an application for permission to apply for judicial review. I am going to strike out as abusive all allegations other than those relating to points 1 and 7 on page 2 of 49. That is the application as it stands. Within a certain time, I am going to require the claimant to file grounds of claim which set out what he says is the test to be applied on an appeal where there is a policy by the Magistrates' Court, set out the evidence which he wished to call before the Crown Court and Magistrates' Court for that matter, there were some witnesses he wanted to call, and explicitly to say whether what he was putting forward was an exception to the policy and, if not, he is to make it clear that he is simply declining to contemplate whether it is an exception or not. Make it clear whether he is declining to see whether he is seeking to argue an exception or not.
MR ROSTRON: Sir, obviously, with respect, he is arguing the exception in his case. Are you saying should he not decline to argue an exception in his case or in everyone's cases?
MR JUSTICE OUSLEY: In his case.
MR ROSTRON: In his case.
MR JUSTICE OUSLEY: I want to have a clear picture. I am going to deliver judgment in the other case. I know Mr Kolvin is going off. I am going to set a time limit. I am going to give you 21 days in which to send in an acknowledgement of service which will then be considered by the judge on paper.
MR ROSTRON: Thank you very much indeed.
MR JUSTICE OUSLEY: But so far as you are concerned, how long do you think you will need to prepare such a document?
MR ROSTRON: Probably a couple of weeks, sir. May I ask one of the things very briefly? Mr Simmonds, the council have run up costs of approaching £10,000 in this case and bailiffs and people are knocking on Mr Simmonds door from time to time seeking to get their money. Could I ask that the judge orders that any collection of the cost so far in this matter could be put in abeyance until the matter is actually decided.
MR JUSTICE OUSLEY: Yes, that is fair enough, because there is a challenge to it for the time being.
MR ROSTRON: Yes, sir. Thank you.
MR JUSTICE OUSLEY: The proceedings are ongoing anyway. There will be a stay on the execution of the costs order until the resolution of these proceedings.
MR ROSTRON: Thank you, sir.
MR JUSTICE OUSLEY: I know you are going off, Mr Kolvin.
MR KOLVIN: Thank you very much. I would not normally do this.
MR JUSTICE OUSLEY: I know, but I need an order drafted. Mr Rostron is not going to be able to draft it. Could you draft an order and send it to him and send it at the same time to the associate. Mr Rostron, you make any comments you want to make upon the order which you get as a draft. It will then be passed to me for approval.
MR ROSTRON: Yes, sir. Thank you, sir.
MR KOLVIN: My Lord, thank you so much for taking everything out of order just to suit my convenience. Thank you very much.
