Nicholds & Ors v Security Industry Authority

This is an application for judicial review of, in substance, the licensing criteria prepared and published by the Defendant, the Security Industry Authority (“the Authority”), under section 7 of The Private Security Industry Act 2001 (“The Act”).

The claimants have all worked for many years as door supervisors. They have worked full time in that capacity, although it appears from the evidence that many door supervisors work part-time, perhaps to supplement their earnings from other employment. They have substantial experience in their jobs. From the material with which they have supported their applications for judicial review it appears that each of them is well regarded by employers and others, who believe that they possess the necessary qualities, including professional competence, to work as efficient, honest and reliable door supervisors. They had permission to work as door supervisors under arrangements which I shall describe later in this judgment. The Authority does not seek to challenge this material as such, but contends, for reasons that will become apparent, that it is not relevant to the applications for judicial review.

None of the claimants qualifies under the licensing criteria prepared and published by the Authority as a fit and proper person to engage in the occupation of door supervisor. Each has a conviction for a relevant criminal offence that automatically debars him for a substantial period from so qualifying. All have been denied licences to work as door supervisors by the Authority. Their appeals have been dismissed by the Magistrates’ Court, which has no choice but to apply the Authority’s published licensing criteria.

The claimants contend that the published licensing criteria prevent the Authority from deciding in their individual cases whether they are fit and proper persons to be door supervisors. They say that the licensing criteria are, therefore, unlawful both upon a proper reading of the Act, guided by well known principles of administrative law, and by virtue of Article 1 of Protocol 1 of the European Convention on Human Rights (“The Convention”), as incorporated into domestic law by the Human Rights Act 1998 (“The HRA”).

In 1999 The Home Office published a White Paper, “The Government’s Proposals for Regulation of the Private Security Industry in England and Wales.” In the foreword by the then Secretary of State, The Rt. Hon. Jack Straw, he stated:

“The private security industry is a thriving, diverse industry covering a range of services from manned guarding to alarm systems and from cash-in-transit to wheel clamping. The industry has grown rapidly over recent years as people have taken greater steps to protect themselves and their property….Despite the importance of the activities which the private industry carries out there is no regulation to control those who work in the industry and no standards to which companies have to adhere. We have discovered examples of firms owned by and run by people with serious criminal records. Research has shown that, in some areas, door supervisors and criminal gangs which control them are responsible for drug dealing in clubs. Reputable companies enforce effective standards and self-regulation but less scrupulous companies are able to undermine their best efforts. Voluntary regulation cannot touch this situation and it leaves the police powerless to protect the public. If the private security industry is to take a greater role in our society then the public have a right to be protected from the rogues who exploit the current unenforceable system and to expect certain standards from the companies they choose to provide the services with which they come into contact….”

The White Paper recognised that there was already significant self-regulation in the private security industry, and said this specifically in relation to self-regulation of door supervisors:

“1.11

Local registration schemes for door supervisors have been set up in a number of areas to tackle problems where they exist. These are set up in co-operation between local authorities and the police, and applicants for registration usually have to be vetted and successfully complete a relevant training course.”

The White Paper dealt with door supervisors in the following terms:

“5.8

There are widespread concerns about criminality among door staff. Assaults are common and as The Police Research Group Paper 86 “Clubs, Drugs and Doormen” showed, door staff can be involved either directly or indirectly in drug dealing in clubs. At present door supervisors are dealt with at a local level through registration schemes. In January 1996, a Home Office Circular (HO 60/95) was issued to all local authorities and police forces offering best practice guidance on setting up such schemes for door staff working at night-clubs and other establishments with a license for public music and dancing. Applicants for registration usually have to be vetted and successfully complete a training course, which is likely to include core elements of legal issues relevant to licensing and powers, social skills, first aid, drugs recognition and fire safety. The circular was drawn up in consultation with representatives of The Association of Chief Police Officers, the local authority associations and the entertainment industry. There are over 100 schemes in operation around the country covering approximately 20,000 door supervisors.

5.9

Registration schemes are not mandatory and not all local authorities operate them. The Government considers that all door supervisors should be licensed to prevent infiltration or intimidation by criminal gangs and to weed out those whose criminal background suggests that they are not suitable for this work. There is likely to be a continuing role for local authority registration schemes to ensure that door supervisors are properly trained and have good links with the local police but the details of this will be for the Authority to decide following the introduction of licensing.”

The White Paper also set out how it envisaged that the proposed industry regulator would address the question of criteria for granting a licence:

“3.15

The precise details of the criteria for grant of a licence will be for the Authority to determine in consultation with interested parties but are likely to include: consideration of the details of the CRC [Criminal Record Certificate]. The Authority will be required to produce and publish clear guidelines on the criteria for granting or refusing a licence. It is likely that certain serious offences will automatically debar an individual from obtaining a licence but generally the Authority will take into account whether any conviction was relevant, the length of time since the offence occurred, whether there was a pattern of offending and whether the applicant’s circumstances had changed since the offence was committed.” (emphasis added)

The present is a context where traditional stereotyping may obscure contemporary conditions and standards. In my view, a leading text book on licensing law and practice well expresses these conditions and standards in the following passages:

“29.03

Variously described in the past as “a thug in a dicky bow” or a “gorilla in a suit” [with reference to “Safety on the Door: an Evaluation of local administered registration schemes for door supervisors,” Abigail Sleat, University of West of England], excoriatingly immortalised in popular culture [references omitted], the door supervisor should now be seen as an integral part of the system of holistic management of the night time economy…..

Today’s door supervisors are the eyes and ears of the licensee, and as such are expected to become involved in the many different aspects of running premises designed for entertainment purposes. They are expected to properly welcome customers onto the premises, whilst enforcing the venue’s entry conditions in a firm but fair manner. Once the customers are on the premises the door staff are expected to ensure that the evening runs according to everyone’s expectations, whilst maintaining order and preventing breaches of the criminal law, licensing laws and house rules. If any of those laws or rules are breached they need to act within the guidelines of the law and company policy to resolve the situation. Occasionally, and as a part of the customer service aspects of the job, door supervisors may be required to administer first aid to anyone who becomes ill or injured on the premises, before proper medical help arrives. They are also required to patrol the premises and to look out for fire hazards or suspicious packages, and need to be able to carry out basic emergency procedures if problems occur. They have to be aware of basic health and safety rules, and must help the licensee to ensure that the venue is safe enough to be open to the public. They are basically “policing” the licensed premises for the management” (Philip Kolvin, LicensedPremises: LawandPractice 2004)

After the hearing, and at my request, Mr Cragg, who appeared for the claimants, gave me further information in relation to non-statutory schemes for regulating door supervisors, attaching a letter of 22 June 2006 from the Assistant Chief Executive of Sheffield City Council. She stated:

“The City Council was the Licensing Authority for Public Entertainment Licenses under the Local Government (Miscellaneous Provisions) Act 1982. The Council administered this system by way of classification of premises. Class 1 (large scale nightclubs, etc) had a condition imposed requiring the licensee to employ door/security staff only if they were registered with the Local Authority. Registered staff were issued with a badge and registration.

Prior to registration an applicant had to attend a course which had similarities with the current course for SIA staff; a police check was made and if necessary the applicant was interviewed by staff or referred to the Licensing Board. There was no appeal to Magistrates Court but the process was subject to Judicial Review. Most large scale authorities operated a similar system which grew out of prompts from Government Departments. The system was enforced against the Public Entertainments Licensee (breach of conditions).”

This further information, which was supplemented by material relating to previous arrangements in Barnsley, is entirely consistent with the description given in LicensedPremises: LawandPractice, referred to above:

“29.09

In areas where door supervisor registration schemes were in operation, persons wishing to work within the security function at licensed premises were requested to apply to either the local authority or the local police for a “licence” to do so. They were required to fill out an application form detailing information, so that a decision could be made as to their suitability for the position, at the same time giving permission for a check to be made with regards to any previous convictions that may have been held against them. A decision was then made as to whether they were suitable for the job, and if so they were normally given provisional status so that they could start work as a door supervisor in that area….

29.10

On most schemes the applicants remained on provisional status until they had attended and passed the local training course, after which they received full registration status. Once fully registered, door supervisors were allowed to work at any licensed premises within that area, and were normally requested to wear their registration badges conspicuously wherever they were working in that capacity. They were also usually requested to abide by a code of conduct. Registration could be revoked upon conviction of a criminal offence deemed to justify such a sanction. Most schemes incorporated some form of appeals procedure for applicants who felt that registration had been unfairly refused or revoked.

29.11

Some local authorities attached conditions to public entertainment licenses to enforce the registration schemes, [a practice held lawful by the Court of Appeal in R v Liverpool City Council ex parte Barry, [2001] LLR 310, although the charge for registration fee was held unlawful], and some licensing justices even started attaching similar conditions to on-licenses when they came up for renewal. Other areas initiated voluntary schemes that required none of the above, relying on the goodwill and common sense of licensees and managers to co-operate with the scheme.”

The same author (at paragraph 29.19) draws attention to the London Local Authorities Act 1995, as the legislative forerunner to the national legislation of 2001. This Act applied to on-licensed premises, and prevented employment of door supervisors (defined as persons employed “at or near the entrance to licensed premises to ascertain or satisfy himself as to the suitability of customers to be allowed entry on those premises or to maintain order on those premises”: section 29) who were not registered with participating Councils. The Council was entitled to attach conditions, including those relating to: the wearing of identification; an obligation to notify the Council of any arrest or prosecution of the door supervisor for violence or dishonesty; and training.

The Act (with supporting Explanatory Notes) provides for the regulation of a number of sectors in the private security industry. It outlines a framework of controls, including the licensing of all individuals engaging in licensable activity, in five industry sectors: security guarding (manned guarding, including door supervision), vehicle immobilization (wheel clamping), keyholding, security consultancy and private investigation. The Act also provides for the establishment of the Authority, as a non-departmental body, to be the industry regulator.

Under section 1(2) of the Act the functions of the Authority include the following:

The constitution of the Authority is set out in Schedule 1 to the Act, and states that the Authority shall act within certain overall aims, including the aim of enhanced protection of the public through increased public trust and confidence in the private security industry by reducing criminality, setting and maintaining standards of probity and improving the professionalism and opportunities of all who work in the industry.

Section 3 of the Act makes it an offence for a person to engage in any licensable conduct except under and in accordance with a licence. Door supervision is explicitly included in the definition of licensable conduct by virtue of Schedule 2 paragraphs 7(1) and 8(1) which bring into regulation as additional controls (see section 3(5) and Schedule 2 part 2) “activities of a security operative” which are carried out - (a) in relation to licensed premises; and (b) at or in relation to times when those premises are open to the public.

Activities of a security operative are defined in paragraph 2 of Schedule 2 as:

The Authority estimates that about 45,000 to 50,000 people currently work as door supervisors.

The licensing obligation extends to premises in respect of which premises licences and temporary event notices have effect to authorize consumption of alcohol on the premises or regulated entertainment. Exemptions are granted for a number of premises, such as: theatres and cinemas; premises being used on an occasional basis as clubs under club premises certificates; premises used for plays and films under a temporary event notice; and premises licensed under the Gaming Act 1968 which are being used wholly or mainly for gaming (Schedule 2, paragraph 8, as amended by the Licensing Act 2003, Schedule 6 paragraph 118).

These provisions are linked directly with the Licensing Act 2003: under section 21 of that Act, if a premises licence is granted with a condition that there must be security staff present, then the staff must be licensed by the Authority (with exemptions corresponding to those in Schedule 2 paragraph 8 to the Act).

The licence granted by the Authority may relate to one or more categories of licensable conduct. It must be subject to conditions prescribed by the Secretary of State which may include: ongoing training, registration and insurances; requirements as to manner in which activities are carried out; obligations to produce and display the licence; and obligations to provide information to the Authority from time to time.

The Authority is given the right to modify or revoke the licence, applying the section 7 criteria. Modification includes suspending the licence for such period as the Authority may determine (section 10).

There is an automatic right of appeal to the magistrates’ court, with a further right of appeal either by the person affected or the Authority in the Crown Court (section 11(4)). An appeal can be brought against a refusal to grant a licence, a grant of licence subject to conditions and a modification or revocation of a licence (section 11(1)). An appeal is a re-hearing but any appeal must be determined in accordance with the authority’s criteria for granting a licence (section 11(5)).

The Act creates a number of new offences in relation to door supervision. For example, section 3(1) makes it an offence to work as a door supervisor without the appropriate Authority licence. It is a summary only offence punishable by imprisonment for a term not exceeding 6 months or a fine not exceeding level 5 on the standard scale or to both (section 3(6)). Similarly, under Section 3(2)(g) it is an offence to employ someone carrying out relevant activities without a licence.

Section 5(1) also imposes criminal liability on a person who provides any security industry services to another through the intermediation of an unlicensed security operative who engages in licensable conduct. This offence is plainly aimed at business enterprises, is triable either way, carrying six months’ imprisonment and the statutory maximum fine before the magistrates and five years’ imprisonment and an unlimited fine before the Crown Court.

The licensing criteria for door supervisors lie at the centre of this application, and it is necessary to set out section 7 of the Act in full:

“(1)

It shall be the duty of the Authority, before granting any licences, to prepare and publish a document setting out –

(a)

the criteria which it proposes to apply in determining whether or not to grant a licence; and

(b)

the criteria which it proposes to apply in exercising its powers under this Act to revoke or modify a licence.

(2)

The Authority may from time to time revise the document for the time being setting out the criteria mentioned in subsection (1)(a) and (b): and, if it does so, it shall publish the revised document.

(3)

The criteria set out by the Authority under this section –

(a)

shall include such criteria as the Authority considers appropriate for securing that the persons who engage in licensable conduct are fit and proper persons to engage in such conduct;

(b)

may include such criteria as the Authority considers appropriate for securing that those persons have the training and skills necessary to engage in the conduct for which they are licensed; and

(c)

may also include criteria relating to such matters as the Authority thinks fit.

(4)

In setting out any criteria or revised criteria under this section the Authority may provide for different criteria to apply –

(a)

In relation to licences for different descriptions of licensable conduct; and

(b)

In relation to the initial grant of a licence and in relation to a further grant to the same licensee for the purpose of renewing an earlier licence.

(5)

Criteria or revised criteria set out under this section shall not have effect for the purposes of this Act unless the Secretary of State has approved them.

(5A) Before giving approval under subsection (5), the Secretary of State shall consult the Scottish Ministers.

(6)

The publication in accordance with this section of any document setting out any criteria or revised criteria must be in such manner as the Authority considers appropriate for bringing it to the attention of the persons likely to be affected by it”.

Ms Kaye Law, the Director of Strategic Development of the Authority, sets out in her witness statement in some detail how the Authority established the criteria under section 7(3). In short the criteria relate to criminality and approved training. The latter aspect is not challenged in the application, but I note that a licence applicant must obtain a qualification from one of the awarding bodies endorsed by the Authority, although the Authority does recognise certain qualifications having equivalent value already obtained by applicants.

After due deliberation the Authority produced a central statement of licensing criteria for door supervisors (the 2004 licensing criteria). A submission supporting the 2004 licensing criteria was prepared by the Authority’s Home Office Sponsorship Unit and was agreed by the Home Office Minister, under section 7(5) of the Act, on 12 January 2004.

The 2004 licensing criteria formed the basis of the published criteria required by section 7(1) of the Act. The first version of the approved published criteria for door supervisors was available in February 2004, with subsequent reprinted copies published in July 2004 and January 2005. Minor policy clarifications to the text were made between reprints, and some omissions and errors were dealt with. The March 2005 amendments were published as an insert to the January 2005 published criteria. A consolidated published document of 2005 licensing criteria containing all security guarding sectors and keyholders was published in September 2005, and this is the published document which currently applies. Nothing in this application turns upon the amendments and revisions to the original document and I therefore refer to the up-to –date version published in September 2005, which I shall call “the Published Criteria.”

I note that the licensing criteria were exposed to substantial public consultation, as explained by Ms Law.

I now turn to the criteria in respect of criminality found in the Published Criteria.

The Published Criteria divide offences into relevant “serious” offences and relevant “significant” offences. Both types of offence are divided into List A and List B, but the listing has no significance for present purposes because all offences in the lists are treated as relevant to an application for a door supervisor licence.

The offences are further categorised into violent/abusive behaviour; espionage/terrorism; offensive weapons; firearms; dishonesty; abuse or neglect of children; sexual offences; drugs; criminal damage; offences under the Act itself.

Ms Law explained in her witness statement how the Authority categorised and chose the offences as “relevant serious” and “relevant significant” offences: see paragraphs 71-79. She summarised the position in these terms:

“76.

The offences have been grouped into the generic categories generally recognised within the criminal justice system (eg violence, dishonesty, drugs etc). The SIA [the Authority] considers that the majority of offences in the categories directly relating to violence, abusive behaviour, theft, fraud, sex and drugs are serious. Such offences go to the heart of what the SIA wishes to achieve in removing workers with these types of offences from the private security industry for particular periods, and in enhancing the industry’s profile and achieving long term public confidence. They are particularly relevant to the door supervision sector because of the nature of interaction between a door supervisor and members of the public, which is further influenced by alcohol, and places a unique pressure on door supervisors to be able to react rationally and calmly in often abusive and hostile situations.”

It is next necessary to explain what the Authority means by the concept of “free of the effects of a conviction, caution or warning.” Ms Law states:

“80.

The end of sentence restrictions is defined on page 41 of the Published Criteria:

“ By free of the effects of a conviction, caution or warning we mean that we will start counting the time elapsed from the end of the sentence or penalty as appropriate - not from the date when you were sentenced or when the offence or offences were committed.”

Reductions in the sentence or penalty imposed (such as release from prison early on good behaviour or revocation of a community service order) are not taken into account (other of course than successful appeal), and the SIA [the Authority] will still regard the offence as relevant until the final date when the sentence or penalty would have ended. For example, where a conviction on 1 January 2000 led to 12 months imprisonment, the sentence restrictions would be deemed to end on 31 December 2000. Where the sentence or penalty imposed is a fine, caution or warning, then the sentence restrictions are deemed to end on the date of conviction because no additional time penalty is given. Due to the difficulty in calculating the end of community sentence orders issued in hours (the SIA cannot determine from a CRB disclosure when the order was completed), the end of sentence restrictions are also taken to be the date of conviction for such orders.”

The licensing criteria as explained in the Published Criteria then work as follows. If a person has committed a “relevant serious offence,” as categorised in the Published Criteria, that person is automatically debarred from obtaining a licence as a door supervisor until the elapse of 5 years from the date when he or she has become free of the effects of the conviction. For example, and taking account of the concepts explained earlier, if a person was convicted of unlawfully causing grievous bodily harm, with intent to do so, contrary to section 18 of the Offences Against the Person Act 1861 (a relevant serious offence), and was sentenced to 4 years imprisonment, he or she would be debarred from obtaining a licence for 5 years after the end of the 4 year period of imprisonment (whether the person was in custody for that period – which would not normally be the case).

Even if a person who has committed a serious relevant offence becomes eligible, after the relevant 5 year period, to obtain a licence as a door supervisor, the Authority in its discretion may still have regard to the conviction in determining whether the person is a fit and a proper person to obtain a licence. The Authority explains at page 41 of the Published Criteria the matters which it will take into account when exercising that discretion, and Ms Law enlarges on this aspect at paragraphs 82-86 of her witness statement.

No offence becomes “spent” for the purpose of carrying out this discretionary exercise: see Article 11 of The Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2003, made under sections 4 and 10 of the Rehabilitation of Offenders Act 1974. In these proceedings there is no attack on this discretionary element in the operation of the criteria: indeed the thrust of the claimants’ case is that the Authority should exercise a similar discretion in all cases.

If a person is convicted and sentenced for a “relevant significant” offence, that person is automatically debarred from obtaining a licence as a door supervisor until the elapse of 2 years from the date when he or she has become free of the effects of the conviction. At that point the person becomes eligible to obtain a licence, but the Authority, for a further period of 3 years, may still have regard to the conviction in determining whether the person is a fit and proper person to obtain a licence. The exercise of discretion is carried out in accordance with the principles explained above in relation to relevant serious offences. At the end of that further 3 year period (that is, a total of 5 years from the time when the person became free of the effects of the sentence) the significant offence effectively becomes “spent” and is disregarded entirely.

I note that the expression “free of the effects” of a conviction may be possibly misleading in view of how the criteria work. As explained above, a conviction for a relevant serious offence has an automatic debarring effect for 5 years after the sentence ends, and has potential effects in perpetuity, for the Authority may, on an application for a licence, take the offence into consideration when exercising the discretion referred to at paragraph 39 above. Similarly, a conviction for a relevant significant offence has an automatic debarring effect for 2 years after the sentence ends, and has potential effects for a further 3 years.

Mr Cragg advances three grounds of challenge. The grounds are closely interrelated, particularly the second and third grounds. I shall change the order slightly from that in which he presented them in his very helpful written outline argument, taking the second and third grounds first before considering the aspect of the Convention and the HRA.

The second ground rests upon pure statutory interpretation. Mr Cragg contends that Parliament simply could not have intended to permit the Authority to include in criteria for a fit and proper door supervisor any rule of automatic debarment such as the Published Criteria undoubtedly establish. Mr Cragg argues that in every case of licence application the Authority must consider a range of matters: it must, for example, consider the applicant’s experience and skills, taking account of any supporting evidence such as testimonials, his general reputation for honesty and integrity, and, importantly, whether he has received, and continues to enjoy, recognition under one of the pre-Act schemes for recognising persons as fit and proper to be door supervisors referred to earlier in the judgment.

It is crucial to understand the extent of Mr Cragg’s challenge and the precise way in which he formulated his submission. He argued, as noted above, that any rule of automatic debarment was outwith the statutory purpose and scope of section 7 of the Act. Thus, to take a very stark example, the Authority could not, in his submission, have a rule that a person convicted of murder, sentenced to a mandatory life sentence of imprisonment and receiving a “tariff” in respect of retribution and deterrence of more than 10 years, would be automatically debarred from obtaining a licence as a door supervisor for a period of 5 years from his actual release (on licence) from custody.

In my judgment, such an interpretation of section 7 is simply unsustainable. The White Paper (see paragraphs 5-8 above) emphasised the grave concerns regarding criminality. The existence of pre-Act recognition arrangements (see paragraphs 10-12 above) was largely a response (albeit largely non-statutory) to such concerns. Against that background the Act itself emphasises public protection and the need to reduce criminality (see paragraphs 14 and 15 above) and buttresses the licensing provisions with the creation of criminal offences (see paragraphs 24 and 25 above)

In my view, Parliament attached the greatest importance to ensuring, through the Act and the regulation by the Authority, that criminality would be driven out of door supervision. It seems to me that it is a matter of common sense that, at the very minimum, the commission of certain offences of extreme violence for which a person has received a very substantial term of imprisonment (my example being such a case) automatically debars that person for a significant period (the duration of which is largely a matter of judgment) from carrying on an activity, door supervision, which Parliament intends to rid of criminal elements. In my view, other matters - such as the person’s other abilities and experience, or any view formed of him by people such as employers - simply could not counterbalance in this statutory context the fact of conviction and sentence. Indeed, it would make a mockery of one of the crucial aims of the Act if such a person were seen to be functioning as an officially licensed and duly badged door supervisor shortly after release from custody for such a seriously violent offence. It seems to me that it would be the failure to have an automatic rule of debarment in such cases that would defeat the purpose of section 7.

There is furthermore nothing intrinsically extraordinary about the policy that the commission of certain grave criminal offences should bar a person from certain types of profession or occupation, particularly if the professions or occupations are ones which must inspire public confidence in the person concerned, or where a person would be placed in a position of trust, or where the person could be exposed to temptation or wrongdoing or criminality. In her witness statement Ms Kay points to the Home Office Circular 48/2001: Eligibility Criteria for Police Recruitment, which was used in the Authority’s own categorisation of offences. That document identifies the offences which would absolutely bar a person from becoming a police officer.

I agree with Mr Cragg that rehabilitation of offenders is an important goal of public policy. However, that goal has to be balanced against other objectives, and in this context public safety is paramount. In my judgment, a person convicted and sentenced for an offence of very serious violence, of the nature that I have exemplified, would need a significant period in the community before the Authority could be satisfied that he had now wholly shed any propensity to violence, which the conviction had evidenced, and that it was safe in the interests of the public that he could work as a licensed door supervisor. The fundamental aim of eliminating criminality among those holding positions of responsibility and trust compels such a result.

I conclude, therefore, that it is wholly within the purpose and scope of section 7 of the Act that the Authority adopt, in its licensing criteria, a rule that conviction of, and sentence for, certain criminal offences should automatically debar an applicant from being treated as a fit and proper person to obtain a licence as a door supervisor for a significant period after he or she has been free of the effects of the conviction (to use the language of the Published Criteria)

I have taken pains to emphasise the precise nature of the claimants’ case. At the hearing of this application I expressly put to Mr Cragg that what I described as a more nuanced and less extreme attack on the Published Criteria might at first sight appear more credible. Such an attack would be more specifically directed at the particular offences listed in the Published Criteria. Consider, for example, Category 4 - Firearms, which includes the offence under section 2 of the Firearms Act 1968 of possessing a shotgun without a shotgun certificate. A person might have had a certificate for a long period and be of extremely good character both in relation to firearms and generally. On one occasion, perhaps distracted by a family bereavement or the like, he fails to renew the licence, is convicted under section 2 and receives a relatively light punishment. Such a person is automatically debarred for at least 5 years from applying for a licence to be a door supervisor. I can envisage that a claimant in that position might more credibly argue that to treat the simple conviction for that specific offence, without any examination of the circumstances and seriousness of the conviction, and without regard to other matters touching upon his suitability for holding a licence, would tend to defeat the purpose of the Act on the ground that it would automatically rule out persons who, on an objective and fully explored basis, were not in truth “serious criminals” (cf. R v Nottingham CC, ex p. Howitt [1999] C.O.D. 530).

My example is purely hypothetical, and I express no view as to the final merit of any such argument. However, I must make clear, particularly if this application were to be considered by a higher Court, that Mr Cragg did not advance any such argument and expressly disavowed, notwithstanding my reference to it, any intention to do so. His attack was a root-and-branch one of the nature that I have set out: no offence was so serious that the Authority could treat it as an absolute bar to obtaining a licence.

The third ground, as I have already observed, is closely related to the second. Mr Cragg contends that the Published Criteria are a complete fetter on the Authority’s discretion and provide no opportunity to consider the individual circumstances of the particular applicant for a licence. Again it is important to bear in mind that Mr Cragg’s argument is that the Authority must retain discretion in every case: there is no conviction so serious that the Authority is entitled, in drawing up the Criteria under section 7 of the Act, to treat the conviction as an absolute bar on obtaining a licence for a significant period after it has ceased to have effect (within the meaning of the Published Criteria).

For the principle that there should generally be no fetter imposed in respect of the exercise of a statutory discretion, Mr Cragg naturally relies upon the well known statement by Lord Reid in British Oxygen Co. Ltd v Minister of Technology [1971] AC 610 at 625:

“The general rule is that anyone who has to exercise a statutory discretion must not “shut his ears to an application”…..I do not think there is any great difference between a policy and a rule. There may be cases where an officer or authority ought to listen to a substantial argument reasonably presented urging a change of policy. What the authority must not do is to refuse to listen at all. But a Ministry or large authority may have had to deal already with a multitude of similar applications and then they will almost certainly have evolved a policy so precise that it could well be called a rule. There can be no objection to that, provided the authority is always willing to listen to anyone with something new to say….”

Ms Lieven, who appeared for the Authority, contended that this ground was misconceived. She submitted that the authorities in which the “no fetter” principle was invoked concerned circumstances where Parliament had conferred a broad discretion upon a public authority to take decisions conferring benefits or imposing burdens, and did not expressly empower the public authority to make rules or to establish a policy for exercising the discretion. A question has then arisen in such cases whether, and to what extent, the authority may make such rules or establish such a policy. In this case Parliament, by section 7, has expressly conferred a rule or policy making power on the Authority. The only question then is whether the authority has made rules that fall within the purpose and scope of the statutory power (the ultra vires test), that are rational (the Wednesbury test) and that are proportionate (if the matter has a Convention dimension). This case is on all fours with R (Elias v Secretary of State for Defence [2005] EWHC 1435, where the executive exercised a rule making prerogative power to create an ex gratia scheme of compensation and was not obliged to award compensation to a person who did not satisfy the strict criteria for award of compensation.

In my judgment, Ms Lieven is correct in her submission.

The extent to which as a matter of public policy discretion should be replaced by rules is a difficult question upon which different views are strongly held: see Craig, Administrative Law, 5^th edition 2003, 536-540.

The advantages of rules are numerous. They ensure fairness and consistency. They promote efficiency of administration. If the rules are transparent, individuals know where they stand and can plan their affairs; and they can subject the rules to searching examination and so further the public accountability of government.

It is not, therefore, surprising that the courts have tended to encourage, rather then discourage, public authorities from making transparent rules and developing published policies. For example, in R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23; [2001] 2 All ER929, at [143] Lord Clyde said:

“The formulation of policies is a perfectly proper course for the provision of guidance in the exercise of an administrative discretion. Indeed policies are an essential element in securing the coherent and consistent performance of administrative functions.”

In R v Southwark LBC ex p.Udu [1996] E.L.R. 390 at 391 Staughton L.J. said:

“The Council are perfectly entitled to have a policy. Fairness, after all, demands that like cases should be treated alike, and the policy will promote that objective”.

In R v Secretary of State for the Home Department, ex p. Venables [1997] UKHL 25; [1998] AC 407 at 432 Lord Woolf M.R. said:

“The Home Secretary’s discretion as to release is very wide. It is the type of discretion which calls out for the development of policy as to the way it will be exercised. This should assist in providing consistency and certainty which are highly desirable in an area involving the administration of justice where fairness is particularly important.”

However, in this instance Parliament has deliberately, by section 7, conferred a rule making power on the Authority. It is for the Authority to draw up what it believes are the appropriate criteria for the grant of licences for door supervisors. The criteria are challengeable only on the grounds of ultra vires, Wednesbury irrationality or lack of proportionality. I have already dealt with the challenge of invalidity; there is no challenge on Wednesbury grounds, and I shall shortly deal with proportionality.

It seems to me that there is also a further reason why Mr Cragg’s third ground of challenge is misconceived. His argument rests upon the premise that the “no fetter” principle applies invariably wherever a discretionary power is conferred, whatever the statutory context. This argument not only infringes the prescription of the “no fetter” principle itself (as he reads it), which assumes that there is an exception to every case, but, more importantly, it is not, in my view, supported by authority or legal policy. Lord Reid was careful, in the passage cited from British Oxygen, to refer to “the general rule.” In most instances where a discretionary power is conferred it would be wrong for the decision maker to frame a rule in absolute terms because to do so would defeat the statutory purpose. However, it seems to me that there are certain exceptional statutory contexts where a policy may lawfully exclude exceptions to the rule because to allow exceptions would substantially undermine an important legislative aim which underpins the grant of discretionary power to the authority. There is, for example, a well-known line of cases concerning “taxi” licensing where licensing rules, which admitted of no exceptions for any “special” circumstances, were held lawful: see, for example, R v Manchester City Justices, ex p. McHugh [1989] R.T.R. 285; 88 L.G.R. 180; R v Wirral MBC ex p The Wirral Licensed Taxi Owners Association [1983] 3 CMLR 150.

In my view, the statutory context must be examined with great care. In this case, for the reasons already given, the statutory context empowers the Authority to make the commission of certain serious criminal offences an absolute bar to obtaining a licence to work as a door supervisor. The rule is intravires and rational. Not to have such a rule in respect of offences of such great gravity would tend to undermine a fundamental aim of the Act, and such a failure would be truly vulnerable to challenge on grounds both of ultra vires and Wednesbury irrationality.

The importance of context is demonstrated by considering certain prison cases. In R v Secretary of State for the Home Department, ex p. Simms [1999] UKHL 33 [2000] 2 A.C.115 and in R (Daly) v Secretary of State for the Home Department [2001] UKHL 26; [2001] 2 WLR 1622, prison rules that prisoners should not receive visits from journalists acting as such and that prisoner’s correspondence, including legal correspondence, should be read in the absence of the prisoner were struck down. The rules in question imposed “blanket” restrictions that did not give due regard to important competing values. However, in a different context the court has upheld prison rules requiring category A prisoners to be strip searched after visits, a rule to which for compelling reasons no exceptions were permitted, even if the prisoner was a “model” inmate and believed that submission to such a search offended the tenets of his faith: see R v Secretary of State, ex p Zulficar (judgment of the Divisional Court, 21 July 1995). Similarly, in the present statutory context certain offences are intrinsically so grave as to justify the imposition of an absolute bar, and no other matter is capable of counterbalancing the fact of conviction and sentence.

For completion, I should make one final observation in this context. It is important to bear in mind that Parliament has conferred upon the Authority the power to draw up the relevant criteria. The Authority is the industry regulator and has the experience and expertise for the task. This Court should be very cautious before seeking to “second-guess” the evaluation that the Authority has made. In my judgment, and putting aside any Convention dimension for the moment, the Court should only strike down the criteria if it could be said that there was no reasonable basis for the conclusion that certain offences were so serious as to justify the imposition of an absolute bar. For the reasons already given, I believe that the claimants in this application signally fail to show that that is the case.

Mr Cragg submits that the Published Criteria infringe Article 1 of Protocol 1 of the Convention, as incorporated into United Kingdom law by the HRA.

Article 1 of Protocol 1 (“AIPI”) reads:

“Protection of Property

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with general interest or to secure the payment of taxes or other contributions or penalties.”

Mr Cragg submits that the permissions to work as door supervisors which each of the claimants obtained, under pre-Act arrangements to which I have referred, amounted to “possessions,” and that the Published Criteria unlawfully deprived the claimants of such possessions. Mr Cragg did not argue that section 7 of the Act itself was incompatible with AIPI. If, on the construction of section 7 that I have provisionally reached, the Authority would have been permitted to adopt the Published Criteria, but those Criteria infringed the claimants’ rights under AIPI, then section 7 should simply be “read down” as not permitting the Authority to adopt such Criteria. That approach is common ground. It seems to me that such an approach is a principled one but is also supported by pragmatic considerations: no question of the compatibility of the primary legislation with the HRA arises. I, therefore, endorse the common approach upon which both counsel have proceeded.

On that footing, three questions arise:-

I have found the first question to be the most difficult. “Possessions” have been defined in broad terms by both the European Commission and the European Court of Human Rights (“ECtHR”). The French text of the Convention uses the expression “biens” which would appear to connote a very broad range of property rights. The ECtHR has stated:

“The Court recalls that the notion “possession” (in French:biens) in Article 1 of Protocol 1 has an autonomous meaning which is certainly not limited to ownership of physical goods: certain other rights and interests constituting assets can also be regarded as “property rights” and thus as “possessions”, for the purposes of this provision.” (Gasus Dosier-und-Fordertechnik GmbH v Netherlands, Judgment of 23 February 1995, Series A No. 306-B; (1995) 20 EHRR 403, para. 53 of the judgment)

The concept includes real and personal property and appears to extend to all manner of “things” which have significant economic value, such as shares (Apps. 8588/79 and 8589/79, Bramelid & Malmström v Sweden, Decision of 12 October 1982, (1982) 29 DR 64, and App.11189/84, Company S&T v Sweden, Decision of 11 December 1988, (1987) 50 DR 121); patents (App. 12633/87), Smith Kline and French Laboratories Ltd v Netherlands, Decision of 4 October 1990 (1990) 66 DR 70; planning permissions (Pine Valley Developments Ltd and others v Ireland, Judgment of 29 November 1991, Series A, No.222; (1992) 14 EHRR); leases and licenses to occupy property (Mellacher v Austria; Judgment of 19 December 1989, Series A, No.169; (1990) 12 EHRR 391, paragraph 43 of the judgment); social security payments and pensions (Stec and others v United Kingdom (Apps 67531/01 App. 65900/01), admissibility decision of 5 September 2005); and legally acknowledged and enforceable debts, including a legitimate expectation that an award of damages will be forthcoming (The National & Provincial Building Society; The Leeds Permanent Building Society and the Yorkshire Building Society v United Kingdom (Apps. 21319/93, 21449/93 and 21675/93), Judgment of 23 October 1997; (1998) 25 EHRR 127; Almeida Garrett, Mascarenhas Falcao and others v Portugal (Apps. 29813/96 and 30229/96), Judgment of 11 January 2000; (2002) 34 EHRR 642).

I have two firm fixed points upon which to tackle the first question. First, the goodwill of a business, or part of a business, may constitute a “possession” under A1P1. Second, an expectation of future income is not a “possession.” In The Countryside Alliance and Others, Derwin and Others, Friend and Thomas v HM Attorney-General, Secretary of State for Environment, Food and Rural AffairsandAnother, RSPCA (Intervener) [2005] EWHC 1677 (Admin) [2006] UK HRR 73, these propositions were established by the Divisional Court (May and Moses LJJ), after an extensive review of Strasbourg case law (paragraphs 167-174). In the Court of Appeal [2006] EWCA Civ 817, the Master of the Rolls, giving the judgment of the Court (Lord Justice Brooke and Lord Justice Buxton with him), upheld the conclusion of the Divisional Court on this matter in the following terms:

“It is sufficient to say that we reject the breadth of the claims as to the loss of their “livelihood”. Strasbourg case law, while stating that a professional man’s clientele may form part of his possessions, as may the goodwill of a business, has very clearly ruled that any element of a claim that relates to loss of future income does not qualify in this respect, unless an enforceable claim to future income already exists. The Divisional Court set out the relevant Strasbourg case law in paragraphs 170-172 of its judgment. We agree with their approach, including their unwillingness to follow the judgment of the Inner House of the Court of Session in Adams [Adams v Advocate-General for Scotland [2002] UK HRR 1189, Ct.Sess (OH); Adams v Advocate-General for Scotland [2004] SC 665, Scot CS 127, Ct. Sess (OH)] at paragraph 97, in so far as it may have suggested that the livelihood of a self-employed person occupies some middle position between marketable goodwill and future income”(paragraph 114).

It seems to me that “goodwill” in this context is not being used in the technical accounting sense of the difference between the cost of an acquired entity and the aggregate of the fair values of that entity’s identifiable assets and liabilities (see, for example, Financial Reporting Standard 10). Goodwill is there used to fill a gap in the balance sheet that would otherwise arise, may well be transient, is exclusively the result of acquisition and cannot be internally generated. It appears that “goodwill” is being used rather in the economic sense of the capitalised value of a business or part of a business as a going concern which, according to modern theory of corporate finance, is best understood as the expected free future cash flows of the business discounted to a present value at an appropriate after tax weighted average cost of funds (see Brealey and Myers, Principles of Corporate Finance, 7^th edition, 2003 at sections 4.5 and 19.1). There is, of course, a connection with the accountancy concept of goodwill, which arises simply because the present value of net future cash flows on the economic model exceeds, or is thought to exceed, the aggregate of the fair values of the identifiable net assets that will be employed to generate those cash flows.

The business has a capital value or goodwill only if the entity can be, and is, organised in a way that allows future cash flows to be capitalised. So a group of plumbers can form a limited liability partnership or incorporate in a limited liability company, contract to supply their services to the entity so created and capitalise future cash flows (net of all costs, including labour) through the value of the partnership or company. Barristers cannot form partnerships or incorporate and have no way to capitalise future cash flows. However, temporary suspension from practice or disbarment would have the same economic impact on a barrister as would a trading suspension or prohibition on a company or partnership. The distinction between the situations seems to me to rest largely, if not wholly, on organisational factors. Nonetheless, it is clear on Strasbourg jurisprudence, now confirmed by high domestic authority, that A1P1 protects only “goodwill”, as a form of asset with a monetary value, and does not protect an expected stream of future income which, for mainly organisational reasons, cannot be or is not capitalised. In other words, the Convention, differing perhaps in this respect from the law of the European Union, protects assets which have a monetary value not economic interests as such.

How should a licence or permission be treated under A1P1? It seems to me that certain licences or permissions are “assets”, that is, they have a monetary value and can be marketed for consideration, either through outright sale, “leasing”, or sub-licensing. Milk quotas would fall within this category as well as certain spectrum licenses which Ofcom allows to be assigned or sub-licensed for consideration. A more difficult case is a licence which has been acquired at a “market” price but which may not be assigned or sub-licensed. The best known examples are perhaps the 3G spectrum licences which were auctioned to five telecommunication operators for £22.5 billion (see “The Auction of Radio Spectrum for the Third Generation of Mobile Telephones”, a Report by the Comptroller and Auditor General HC 233 Session 2001-2002 19 October 2001), but which under the conditions of acquisition could not be assigned or sub-leased (although Ofcom now has proposals to permit such transactions). The value of the licences would no doubt have been treated as assets with monetary value in the accounts of the operators, and it seems to me that it would be well arguable that such licences, although not marketable as such, could properly be treated as assets having a monetary value so as to qualify as “possessions” under A1P1. Tricky issues might arise if such assets became fully amortised or lost market value.

However, there are other licences or permissions that are neither marketable nor have been obtained at a “market” price, that is, a price representing what is thought to be the value of net discounted future cash flows that the licence might generate. Such a licence in one sense has a value to the holder because, without it, he cannot carry on the licensable activities. However, such licences do not seem to me to be “assets” having monetary value in the sense required by A1P1. Such licences do not as such represent a distinct asset having a monetary value.

Furthermore, to treat such licences as “possessions” would, in my view, risk introducing unjustified distinctions into what is already a fairly complex area of law. Once a “possession”, the licence enjoys a status under A1P1: any interference must be justified as proportionate and damages may be awarded if the interference is not justified. The damages are likely to be substantial because economic interests have been putatively destroyed or impaired. That higher protection would, however, depend solely upon whether the economic activity in question, which has been the subject of interference, was a “licensable” one. But I have difficulty in seeing any rationale for giving a higher protection by reason of that fact alone. It is true that commentators have often observed that licensing may constitute a barrier to entry and thus raise industry profits above the competitive level, but that could hardly be a good reason for according higher protection under the Convention and HRA to licensable activities. If licensable activities enjoyed higher protection, the result in Countryside Alliance (that the expectation of future earnings was not a possession) could have been different if hunting had first been a licensable activity and the effect of the ban in the Hunting Act 2004 had been to make such licences worthless. However, such a distinction would seem largely fortuitous and I cannot see merit in a system which would treat these two situations differently. It might be thought unfair that a professional person such as a barrister cannot capitalise future earnings and therefore enjoy “goodwill” as a protected possession. However, to address any such unfairness by treating the barrister’s practice certificate as a “possession” would seem to me to risk creating unjustified discrimination against those carrying on an unlicensed activity who also do not or cannot capitalise future earnings.

In the present application it is common ground that the permissions which the claimants enjoyed under the arrangements prevailing in their cases before the Act were not marketable and were not obtained at a “market price”, although the claimants may have paid fees, intended to cover the administrative costs of the grantor, to obtain them. They did not, therefore, represent any form of asset having a monetary value, although they were “valuable” to the claimants because, without them, they could not work as door supervisors in the areas covered by the relevant arrangements. As I analyse the position, these permissions would not constitute possessions under A1P1.

However, Mr Cragg submits that there is authority that such a licence may constitute a possession. He refers to Tre Traktörer Aktiebolag v Sweden (1989) 13 E.H.R.R. 309. This concerned the revocation of a license to sell alcohol at a restaurant. In paragraph 53 the Court said:

“The Government argued that a licence to serve alcoholic beverages could not be considered to be a “possession” within the meaning of Article 1 of the Protocol. This provision was therefore, in their opinion, not applicable to the case. Like the Commission, however, the Court takes the view that the economic interests connected with the running of Le Cardinal were “possessions” for the purposes of Article 1 of the Protocol. Indeed the Court has already found that the maintenance of the licence was one of the principal conditions for the carrying on of the applicant company’s business, and that its withdrawal had adverse effects on the goodwill and value of the restaurant.” (emphasis added).

It seems to me that it is not clear in Tre TraktorerAktiebolag whether the ECtHR was saying that the license as such was a possession. The ECtHR was arguably looking at the substance of the matter and considered that the State had interfered with the goodwill of the business, which, on established authority, was an interference with enjoyment of a “possession”.

Tre Traktorer Aktiebolag was relied upon by Collins J in R (Quark Fishing Ltd) v Secretary Of State for Foreign & Commonwealth Affairs [2003] EWHC 1743 (Admin) where, on an application to strike out a claim as unarguable, the learned judge held that the refusal to grant a fishing licence contrary to a legitimate expectation that a licence would be granted was arguably an interference with a “possession”. The learned judge had to be satisfied only that the matter was arguable on the basis of ECtHR authority. Perhaps I might note on the facts of the case that Quark Fishing Ltd had in any event traded successfully for many years and that the refusal to continue to license it was likely to have interfered with the value (goodwill) of that business.

In Regina (Malik) v Waltham Forest Primary Care Trust [2006] EWHC 487 (Admin) Collins J. held that a doctor’s inclusion in a primary health care trust’s performers’ list was akin to a licence and therefore could be considered a possession. As far as I can see from the facts of the case, the inclusion in the list was not an asset that could be marketed, through sale or sub-leasing, nor was it something that had been acquired at a “market” price and could be treated as a distinct asset with a monetary value. For the reasons that I have sought to explain, with great respect, entry on the list would not seem to me to constitute a “possession” under A1P1. I understand that Malik is to be considered by the Court of Appeal and it would be better for me to say no more about it.

In Crompton v Department of Transport North Western Area [2003] EWCA Civ 64 the Court of Appeal held that a haulage operator’s licence was a “possession”. The defendant did not appear in the appeal and there does not seem to have been any argument, or discussion in the judgment, about the basis upon which this particular licence was to be treated as a possession under A1P1.

However, in the light of these authorities, I believe that the right course is for me, despite my reservations, to proceed in this application on the footing that the relevant permissions previously enjoyed by the claimants do constitute possessions under A1P1 and to address the second and third questions identified above.

I have little doubt that the Published Criteria did interfere with the claimants’ putative rights under A1P1, because the Criteria destroyed the value of such rights. The crucial question, therefore, is whether the interference was proportionately necessary to promote the general interest.

In Wilson and Others v Secretary of State for Trade and Industry [2003] UKHL 40, Lord Nicholls said:

“70 In approaching this issue [the fair balance between the public interest and the protection of fundamental rights], as noted in R v Johnstone [2003] UKHL 28 para 51, courts should have in mind that theirs is a reviewing role. Parliament is charged with the primary responsibility for deciding whether the means chosen to deal with a social problem are both necessary and appropriate. Assessment of the advantages and disadvantages of the various legislative alternatives is primarily a matter for Parliament. The possible existence of alternative solutions does not in itself render the contested legislation unjustified: see the Rent Act case of Mellacher v Austria (1989) 12 EHRR 391, 411, para 53. The Court will reach a different conclusion from the legislature only when it is apparent that the legislature has attached insufficient importance to a person’s Convention right. The readiness of a court to depart from the views of the legislature depends upon the circumstances, one of which is the subject matter of the legislation. The more the legislation concerns matters of broad social policy, the less ready will be a court to intervene”.

I also bear in mind the four indications set out in the judgment of Laws L.J. in R (International Transport Roth GmbH) v Secretary of State for The HomeDepartment [2002] EWCA Civ 158; [2003] QB 728 at paragraphs 83-87. Factors 2-4 there referred to by Laws LJ apply in this case.

In the present application the challenge is, of course, not to primary legislation. However, Parliament has by section 7 of the Act imposed upon the specialist regulator, the Authority, the duty of drawing up the Criteria for recognising persons as fit and proper to be door supervisors. In my view, it would, therefore, be right to accord the specialist regulator, to whom Parliament has entrusted the task, a discretionary area of judgment, and to confine the court’s role to one of review as explained by Lord Nicholls in Wilson. It is indeed common ground that that is the correct approach in this case. Furthermore, the drawing up of criteria by the Authority concerns a matter of social policy. From time to time cases involving door supervisors may come before the courts (see, for example, Mattis v Pollock [2003] LLR 887), but the court cannot have the same panoramic view of the industry, or the same experience and understanding of the industry which day-to- day exposure gives to the Authority.

In Wilson Lord Nicholls also gave guidance as to the materials to which the court might properly have regard in reviewing the proportionality of the balancing exercise:

“63 When a court makes this value judgment the facts will often speak for themselves. But sometimes the court may need additional background information tending to show, for instance, the likely practical impact of the statutory measure and why the course adopted by the legislature is or is not appropriate. Moreover, as when interpreting a statute, so when identifying the policy objective of a statutory provision or assessing the “proportionality” of a statutory provision, the court may need enlightenment on the nature and extent of the social problem (the “mischief”) at which the legislation is aimed. This may throw light on the rationale underlying the legislation.

64 This additional background material may be found in published documents, such as a government white paper…..”

In my view, this is a case where, following that guidance, I should have regard to the White Paper referred to earlier in this judgment. The background to the Act reveals the very great public concern that undesirable criminal elements had penetrated into the activities of door supervisors, with serious consequences for public safety and good order. Door supervisors undoubtedly play a key role at many premises; they are placed in a position of trust; they have important responsibilities; and the public must have a high degree of confidence that they will discharge their responsibilities competently and in a lawful manner. A fundamental rationale for the Act, and in particular for section 7, was to raise standards and to ensure that criminality was driven from this industry. I have no doubt that this was a goal “in the general interest”, within the terms of A1P1.

Mr Cragg contends nonetheless that the Published Criteria were a disproportionate response to the perceived “mischief” at which the Act, and section 7 in particular, was aimed. Again his challenge was based on the proposition that no absolute automatic bar was justified, no matter how serious the crime of which the applicant for a licence was convicted and for which he was sentenced. I have already rejected that proposition for the reasons set out earlier. For the same reasons I hold that the Authority acted proportionately in deciding that certain crimes are so serious that nothing less than an absolute automatic bar was justifiable. The Authority had good grounds for concluding that a fundamental aim of the Act, to eliminate criminality in door supervision, could only be achieved by imposing an absolute automatic bar if the applicant committed certain very serious offences. Indeed, if I had to express a view of my own on how the balance should be proportionately struck, I would have no hesitation in concluding that the Authority was right to impose an absolute bar in those circumstances.

Mr Cragg argued in particular that it was disproportionate for the Authority not to have adopted “transitional arrangements”.

There are two kinds of transitional measures that may be found in a context like the present. First, there is what is called “grandfathering”, that is, a person qualified to be a door supervisor under pre-Act arrangements would automatically be treated as so qualified under the Act. Sometimes the legislature itself adopts “grandfathering”. For example, under the Licensing Act 2003, to which I have already made reference in a different context, a premises licence granted under earlier legislation is on application converted, with a restricted proviso, into a license granted under the Licensing Act 2003.

There is also a weaker type of transitional measure by which persons affected by new legislation are given a reasonable period to meet the criteria specified under the new legislation. This may arise, for example, where a right of action has accrued under existing legislation and the new legislation reduces the period in which claims must be brought, thus threatening accrued rights.

In this case the Authority did allow a reasonable period for applicants to apply under the Published Criteria. No complaint is made on that score. But Mr Cragg submits that the Authority ought to have “grandfathered” existing permissions into the Published Criteria.

In my view, the Authority did have a discretion to adopt the course which Mr Cragg advocates. However, it was for the Authority to decide that matter. The Authority decided that the Published Criteria should apply to all applicants, whether or not they had “qualifications” under pre-Act arrangements. It is plain that Parliament intended that standards should be raised and in my judgment it was well within the Authority’s area of discretionary judgment to seek to raise standards immediately across the industry. That approach also ensured equality of treatment because all licensed door supervisors would by definition meet the same Criteria. That in turn would promote public confidence in the licensing arrangements.

I note that so far as training was concerned the Authority did allow certain existing qualifications to be treated as equivalent to those specifically approved under the Act. I can see justification for that course because the Authority was plainly satisfied that existing qualifications were indeed equivalent. But the Authority - justifiably, in my judgment - took a different course in respect of criminality, not being satisfied that on that aspect the previous arrangements were sufficient to ensure the elimination of criminal elements as Parliament envisaged.

On this last question I should note that in any event the claimants did not bring before the Court material that would have allowed a real comparison to be made with any pre-Act arrangements. Some material was provided after the hearing but that would go nowhere near sustaining a challenge that the Authority acted disproportionately in not “grandfathering” the existing qualifications. However, my decision on this issue rests not on the paucity of the material relied upon, but rather on the principled point that it was for the Authority to decide whether “grandfathering” was appropriate and that, having regard to the aims of the legislation, the Authority justifiably decided that it was not.

In the event, the first ground of challenge also fails.

Accordingly, all grounds of challenge having failed, I dismiss this application for judicial review.