The Porky Pint Ltd v Stockton on Tees Borough Council

This case is about a pub which stayed open despite Covid-related restrictions and has lost its licence. The case comes before me as an appeal by way of case stated pursuant to section 111 of the Magistrates’ Courts Act 1980, from an adjudication of District Judge Hood (“the Judge”) sitting at Teesside Magistrates’ Court on 15 and 16 March 2022. The question for me is whether the Judge’s adjudication was wrong in law. Three questions of law are stated in the Judge’s stated Case of 11 May 2022 (the “Stated Case”). I first encountered this case in July 2022, in making the Venue Determination at [2022] EWHC 1705 (Admin) (the “July Judgment”). The appeal had wrongly been filed in London. The Administrative Court in London is not the National Administrative Court. Rather, it is the South-East Regional venue of the Administrative Court. As I explained in the July Judgment, this case plainly has its closest connection with the North-East Region, where the pub is located, where the events took place, where the hearings of the Respondent (“the Council”)’s Statutory Licensing Committee (“the Committee”) and of the appeal before the Judge took place, a geographical orientation and connection decisively outweighing the implications, inconvenience and travel cost associated with the Appellant’s choice of Essex-based solicitors and London-based barrister.

The Porky Point is a popular pub in Mill Lane, Billingham. Its director and Designated Premises Supervisor is Mr Paul Henderson. After a hearing in July 2021 the Committee, on an application made by Cleveland Police (“the Police”) for a review of the licence, decided that the licence should be revoked. The Committee said this (Mr Kolvin QC is Counsel who represented the Appellant at that hearing):

The relevant key features of the statutory scheme were identified by John Howell QC in Lalli v Metropolitan Police Commissioner [2015] EWHC 14 (Admin) at §§19-24. Under section 136 of the Licensing Act 2003 (the “2003 Act”) it is an offence to sell alcohol (or knowingly allow it to be sold) by retail on or from any premises without an authorisation. Such an authorisation can be given by a premises licence granted by a licensing authority under Part 3 of that Act. At the heart of the Act are the “licensing objectives” identified in s.4(2):

As will be seen below from the Judge’s Findings, the case arises out of the sequence of events from October 2020 to February 2021. During that time there was a sequence of Regulations in the form of Statutory Instruments made by the Secretary of State for Health, in the exercise of the powers conferred by the Public Health (Control of Disease) Act 1984 (the “1984 Act”). The prior sequence of such Regulations, in the first part of 2020, was described by the Court of Appeal in R (Dolan) v Secretary of State for Health and Social Care [2020] EWCA Civ1605 [2021] 1 WLR 2326 at §§9-10. Subordinate legislation of that kind is lawful only if falling within the reach (vires) of the empowering Act. The key provisions of the 1984 Act, which the Court of Appeal in Dolan ruled did empower such Regulations, are set out in Dolan at §§44-54. The Regulations had a consistent design pattern. They made it a criminal offence to contravene, without reasonable excuse, the restrictions imposed in the Regulations, or to fail to comply with a Prohibition Notice issued under the Regulations. The Regulations also made provision for fixed penalty notices (“FPNs”), offering the person to whom the FPN was issued the opportunity of discharging, by paying the FPN, any liability to conviction for the offence in respect of which the FPN had been issued. For the hearing before me, Mr Oakley provided November 2020 Regulations (SI 2020 No. 1200) which came into force on 5 November 2020; and December 2020 Regulations (SI 2020 No. 1374) which came into force on 2 December 2020. After the hearing, he provided further Regulations (SI 2020 No. 1611). The Judge described the sequence of relevant Regulations in the following way (taken from Judgment §§31, 32, 35), with which description no issue was taken on this appeal:

The steps taken by the Council and the Police included the following, again as described in the Judgment (§25):

In the Committee’s determination there was a discussion of events of 22 June 2021, said to involve the Appellant’s staff and customers not wearing face coverings. The Judge put those to one side. He concluded – given that the then Regulations provided for reasonable excuses and given that insufficient was known about the individuals and their characteristics – there was insufficient evidence to be able to determine that this conduct should be taken into account. I too leave that out of account.

The Judge set out the principles governing his function on appeal (on which there was and is no dispute), which he derived from R (Hope & Glory Public House Ltd) v City of Westminster Magistrates’ Court [2011] EWCA Civ 31 (Judgment §21):

Witnesses who gave oral evidence before the Judge included Acting Sergeant Thorpe of Cleveland Police (who had made the Police’s section 51 application to the Council for a review of the Premises Licence); James Jones (the Council’s Trading Standards Officer); Leanne Maloney-Kelly (the Council’s Licensing Team Leader); John Wynn (the Council’s Licensing Officer); and Mr Henderson. There were witness statements from these and other witnesses. There was documentary evidence.

In the Stated Case (§10) the Judge records these “Findings of Fact” (the “Findings”). None of them are challenged on this appeal.

The Judge “found that the Appellant had failed to demonstrate that the decision of the licensing committee was wrong and dismissed the appeal” (Case Stated §15) based on this analysis (Case Stated §14):

The three Questions of law stated for the Opinion of the High Court (1980 Act s.111(1)) were identified by the Judge as follows (Stated Case §16):

This is the Judge’s Question [a]. It arose out the Judge’s Reason [a] (that the licensing objective of public safety was engaged) and Reason [b] (see §10 above). The Judge had earlier summarised the arguments he had heard as follows (Stated Case §§11-12). The argument on behalf of the Appellant:

Mr Oakley submitted in essence, as I saw it, as follows:

On this part of the case, Mr Oakley advanced a further line of argument which in essence – as I saw it – was as follows:

Those, then, were the arguments advanced on this first Question on behalf of the Appellant. In the light of them, submitted Mr Oakley, the Judge went wrong in law in his approach and reasoning. The legally correct approach – as a matter of legally correct statutory interpretation – was that the “public safety” licensing objective was not engaged. The Judge was wrong in law (Reason [a]) when he said the opening of premises which should have been closed and lack of Covid measures was evidence relevant to the “safety” of those using the premises; and when he said the transmission of a virus requiring specific regulations involved the consideration of public safety for licensing purposes.

In my judgment, the correct analysis is as follows. First, the legally correct interpretation of section 4(2) is a question of law for the Court, to be derived from the words used by Parliament and the discernible statutory purpose, and that the Court has no role in seeking to expand the statutory reach beyond that position. The licensing objective is “public safety”, and not “public health”.

Secondly, on their legally correct interpretation, the licensing objectives are not restricted to “alcohol-related” matters: alcohol-related public safety; the prevention of alcohol-related crime and disorder; the prevention of alcohol-related public nuisance; the protection of children from alcohol-related harm. Parliament did not include such a restriction and it would have been very easy to do so. Certainly, alcohol-related matters can be expected to be the principal focus of these licensing objectives, in this statutory scheme concerned with licensed premises. It is thus a proper function of the Guidance, to which regard has to be had, to commend such a focus. To test whether the licensing objectives are, in principle, restricted to alcohol-related matters it is helpful to take the crime prevention objective. Lalli was about an alleged serious assault by a publican in ejecting a customer. East Lindsey District Council v Hanif [2016] EWHC 1265 (Admin) was about licensed premises employing an individual whose immigration status precluded their working. In each, the crime prevention objective was engaged. The Guidance understands the broader reach of the crime prevention objective correctly when (at §11.27) refers to criminal activity that may arise in connection with licensed premises in which needs to be treated particularly seriously for the purposes of that licensing objective. These include the sale and distribution of drugs, the laundering of the proceeds of drugs crime, the sale and distribution of illegal firearms, the evasion of copyrights in respect of pirated or unlicensed films and music; the employment of persons disqualified from work by reason of immigration status; unlawful gambling; the sale or storage of smuggled tobacco; and so on. A group of teetotallers dealing drugs from a licensed bar would plainly engage the crime prevention objective and it could be no defence on the part of the licensee that this was a matter capable of being addressed only under other statutory schemes.

Thirdly, the licensing objectives are plainly capable of overlapping. For example, as correctly identified in §2.7 of the Guidance, conditions relating to public safety may also promote the crime prevention objective. Even if “public health” were a fifth licensing objective, there would be the same susceptibility to overlap between public safety and public health as can be seen between public safety and the prevention of crime and disorder. The licensing objectives – including “public health” had it been included – would in those circumstances operate in the way of a Venn diagram: with overlapping circles of scope and reach. The fact that “public health” is not a licensing objective means its circle is absent. But the overlap it has – and would have – with “public safety” remains within the scope of the “public safety” objective. Put another way, the fact that “public health” is not present as a licensing objective does not ‘strip out’ anything which could be said to be “public health” from what properly falls within “public safety”. The reach of “public safety” does not stop at something which could also be said to be “public safety”. That would deny the room for any overlap.

Fourthly, there are necessarily questions of evaluative judgment and appreciation, in characterising a borderline scenario as against the licensing objectives. They do not require a judicial gloss or definition. The words have an ordinary and natural meaning. These are the realms of “application”; not “interpretation”. It is not a hard edged question of interpretation of the statute where there a particular set of circumstances or concern is assessed as engaging the “public safety” licensing objective. The Claimant’s further line of argument acknowledges that regulations, if made under other parent statutes, with Parliamentary scrutiny, would then fall within “public safety”. Nothing in the wording or purpose of the statute can support a hard-edged and blanket exclusion of all aspects regarding communicable diseases. A similar point was made by John Howell QC in Lalli at §48 when he spoke of the need for a relevant connection or link between licensed premises and serious crime or serious disorder, for the purposes of the accelerated review under section 53A of the 2003 Act, saying this: “Parliament has decided not to define or to limit the nature of the association with serious crime or serious disorder which the licensed premises must have.” Not all questions are hard-edged questions of law. Many call for an exercise of evaluative judgment.

Fifthly, I can find no error of law in the reasoning of the Judge relating to “public health”. Giving the words “public health” their ordinary and natural meaning, and in light of the circumstances of the pandemic at the relevant times, there was nothing incorrect – still less unreasonable or unjustified – in the Judge concluding, as the Committee had before him, that this licensing objective was engaged and relevant. I agree with Mr Kemp: there is no error of law. But nor, having rejected the argument about the licensing objectives being restricted to alcohol-related matters, would this be a material error of law – in my judgment – to stand as a freestanding vitiating flaw, given the Judge’s strong emphasis on the crime prevention objective.

I add the following points, given in particular Mr Oakley’s further line of argument. The Court of Appeal in Dolan, a judgment given on 1 December 2020 of Lord Burnett CJ, King and Singh LJ: (at §4) described the 30 January 2020 announcement of the Director General of the World Health Organisation (“WHO”) which “declared a public health emergency of international concern over the global outbreak of Covid-19”; (at §16) recorded the preamble to the Covid-19 Regulations describing their being made in response to “the serious and imminent threat to public health which is posed by the incidence and spread of [Covid-19]”; (at §72) said that the “meaning of an emergency in section 19(1)(a) [of the 2004 Act] would apply to the present circumstances: ‘an event or situation which threatens serious damage to human welfare in the United Kingdom or in a Part or region…’”; (at §77) said that the fact that the 2000 Act involved different procedure and different Parliamentary scrutiny did not detract from the fundamental point that the Health Secretary was able to act instead by making Regulations under the 1984 Act; and (at §89) that this was “an area in which the Secretary of State had to make difficult judgments about medical and scientific issues and did so after taking advice from relevant experts”. The announcement of the UK Health Security Agency that, as of 19 March 2020, Covid-19 was no longer considered to be a HCID in the UK was alongside the recognition by that same Agency that the WHO continued to consider Covid-19 a “Public Health Emergency of International Concern”. The SAGE committee – itself the “Scientific Advisory Group for Emergencies” – at its meeting on 21 September 2020 (§2) was advising that a package of interventions would need to be adopted to reverse the exponential rise in Covid-19 cases and the shortlist of interventions for consideration included “closure of all bars, restaurants, cafes, indoor gyms, and personal services (e.g. hairdressers)”, and was advising (§19) that the earlier additional measures were introduced the more effective they would be; and (§20) that “case-control studies indicated that restaurants and bars were associated with increased transmission risks”. The SAGE Committee did not think those studies unreliable or speculative. The SPI-M-O – remembering that this was the Scientific Pandemic Influenza Group on Modelling – in a “Consensus” Statement of 7 October 2020 recorded (§5) that: “There is complete consensus in SPI-M-O that the current outlook for the epidemic’s trajectory is concerning, if there are no decisive interventions or behavioural changes in the near future”; and (6) that there was “clear evidence from a well-designed case-control study from the USA that shows restaurants and bars are particularly risky environments”.

It is, in my judgment, illuminating to reach down to consider the reasoning of the front-line Committee who noted that reference had been made to the fact that “public health is not a licensing objective in its own right”. The Committee accepted this but was nevertheless “satisfied that in particular the licensing objectives of crime and disorder and public safety were engaged and relevant to the evidence presented”. In a passage, which reflects the overall public interest purposes of the 2003 Act and licensing objectives in the context of the licensed premises, and which illustrates the legal permissibility of evaluating the circumstances of this case as engaging the “public health” licensing objective, the Committee’s described:

This is the Judge’s Question [b]. It arose out the Judge’s Reasons [a] and [d]-[f] (see §10 above). It links to the Judge’s Findings [b]-[f] (§9 above). The Judge had earlier summarised the arguments he had heard as follows (Stated Case §§11-12). On behalf of the Appellant:

As I saw it, Mr Oakley’s arguments for the Appellant proceeds in the following three stages, supported by the following key points. Stage 1 is the proposition that – approaching the case on a legally correct analysis – the Judge was obliged to address this question: whether, in respect of breaches of the Regulations (including non-compliance with the Prohibition Notice), the Appellant and Mr Henderson – if prosecuted – would have had a defence. Thus, it was an error of law for the Judge not to address this question. As the Judge’s Reason [8] makes clear, this was a case in central focus was behaviour of the Appellant and the opening or reopening of premises during a period “when this was not allowed”, that being the central aspect relevant to the crime prevention objective. That same central focus can be seen from the Judge’s Findings [b] (that a wedding reception at the pub consisted of 30 guests at a time when the Regulations imposed a limit of 15), Findings [c]-[e] (about operating as a pub when on-premises sales were not allowed) and Finding [f] (about reopening the pub). The implications of all of this conduct, viewed in terms of the crime prevention objective, necessarily involves considering this question: was there actually any offence? This is a case in which, at the stage of the appeal before the Judge, the Appellant was saying it had a defence. As Jay J explained in Hanif at §18, the application of the crime prevention objective is in part retrospective, inasmuch as antecedent fact will usually impact on the statutory question. As he said at §19:

Stage 2 is the proposition that, on a legally correct analysis, it would have been a defence in any criminal proceedings to show that the restrictions in the Regulations – which would have been relied on in any prosecution for their breach (including non-compliance with the Prohibition Notice based on them) – constituted a violation of the Appellant’s Article 1 Protocol 1 (A1P1) ECHR property rights, as also Scheduled to the HRA and protected through section 6. Thus it was an error of law for the Judge (Reason [e]) to treat A1P1 as answered by whether revocation was in the public interest; and an error of law (Reason [f]) to treat the A1P1-compatibility of the restrictions in the Regulations as matters for “judicial review of the legislation in the High Court”. These key points made in support of stage 2. In a criminal prosecution based on alleged breaches of rules, regulations or byelaws a defendant is in principle entitled to raise as a defence the lawfulness – by reference to some relevant and applicable superior legislative enactment – of those rules, regulations or byelaws said to have been breached. Thus, the question of whether there is a crime does not turn on the narrow issue of whether the individual ‘went by the book’, in terms of compliance with the rules, regulations or byelaws. Rather, it turns on the broader and fundamental question of whether those rules, regulations or byelaws said to have been contravened had been lawfully made, when viewed against the terms of the superior legislative instrument. This principle was recognised in the Dolan case at §41, where the Court of Appeal explained why it would address the vires issue of whether the Covid-19 Regulations in early 2020 were unlawful when viewed against the superior empowering statute (the 1984 Act). As the Court of Appeal there explained, in Boddington v British Transport Police [1999] 2 AC 143, the House of Lords held that a public law argument about the vires of an instrument in which a criminal offence is created can be raised by way of defence in criminal proceedings. The Boddington logic is not however restricted to issues of incompatibility with the superior ‘empowering’ primary legislation. It would equally apply if the rules, regulations or byelaws were unlawful as being in conflict with some ‘freestanding’ but superior primary legislative source. Indeed, in Dolan itself one of the arguments arose out of what were said to be the legal consequences of the 2004 Act, which was not the empowering Act but a ‘freestanding’ Act (see §§72-77). As it happens, the Court of Appeal in Dolan did not treat the HRA-compatibility arguments as apt for adjudication, by reference to the same Boddington principle. But that was not because the Boddington principle would not apply to an HRA-incompatibility. Rather, it was because the 1984 Act (vires) issue was a clean-cut legal issue which would apply, as a matter of generality, to any case involving any person affected by Covid-19 Regulations. HRA arguments were necessarily different, because they would depend on analysing the particular restriction on the particular right interfered with, by reference to the impacts and justification. The ‘vires’ argument in relation to the 1984 Act, on the other hand, was a discrete point of statutory construction (see Dolan §40). Finally, there is this point. The Judge (Judgment §54) relied on the fact that a declaration of incompatibility of secondary legislation pursuant to section 4 of the HRA was not something for him to consider. But subordinate legislation will be unlawful pursuant to section 6 of the HRA if it violates a Convention right. No question of a declaration of incompatibility arises in the case of secondary legislation, unless the violation is the inevitable and necessary consequence of the terms of primary legislation: see R (Bono) v Harlow District Council [2002] EWHC 43 (Admin) at §34.

Stage 3 is the proposition that, on a legally correct analysis, the restrictions in the Regulations – which would have been relied on in any prosecution for their breach (including non-compliance with the Prohibition Notice based on them) – did constitute a violation of the Appellant’s AIPI rights, providing a Boddington defence so that the Appellant or Mr Henderson would have been bound, if prosecuted, to be acquitted. It was an error of law for the Judge not to address this question and identify this as the answer. In support of Stage 3, Mr Oakley’s analysis is as follows. (1) The starting point, as the Judge rightly recognised (Reason [e]), involves acceptance that A1P1 rights (namely, possessions) arise in conjunction with the Appellant’s licensed activities. The leading case, as the Judge recognised, is Tre Traktorer Aktiebolag v Sweden (1989) 13 EHRR 309 (mentioned in R (Mott) v Environment Agency [2016] EWCA Civ 564 [2016] 1 WLR 4338 at §50), where the Strasbourg Court said (at §53) that the economic interests connected with the running of the applicant’s restaurant were possessions for the purposes of A1P1. That was in a context where maintenance of the alcohol premises licence was one of the principal conditions for the carrying out of the applicant company’s business, so that withdrawal (ie. revocation) of the premises licence had adverse effects on the goodwill and value of the restaurant. (2) In this case, the relevant restrictions in the Regulations said to have been breached (and on which the Prohibition notice was based) constituted an interference with the Appellant’s A1P1 rights, and the question arises as to whether it constituted a “deprivation” of property or a measure of “control of the use” of property (see Tre Traktorer at §55; Mott §85). The answer to that question is that there was plainly a deprivation of property. That is because the pub was being required to close for on-premises sales (from 5.11.20) and then (from 6.1.21) for all sales. Leaving aside a ‘de minimis’ closure, any such prohibition must, in law, constitute a deprivation of property, notwithstanding whether it is temporary. (3) Once it is recognised that the interference constituted a deprivation of property, the “general doctrine” applies that A1P1 rights are to be treated as having been violated absent compensation. This doctrine is reflected in Mott at §85, discussing earlier authority, observing “that there was no general doctrine that measures amounting to control of property, as distinct from deprivation, generally required compensation”. As to compensation, even if it is relevant to consider the “measures of financial support which the Government introduced in the exceptional situation created by the pandemic” (see Dolan at §110) what is crucial is that there was no support scheme which addressed the Claimant’s substantial loss of “profits”. In those circumstances, there was no compensation in relation to the deprivation of property, and therefore the Appellant’s A1P1 rights were violated by the restrictions in the Regulations whose breach was relied on as constituting the commission of criminal offences. Accordingly, the Appellant and Mr Henderson would have been bound to be acquitted had there been any prosecution, on Boddington HRA grounds. The Judge was wrong in law not to recognise that and, had he done so, it would have been critical in removing the justification for the draconian response of licence revocation.

Mr Kemp for the Respondent contests this argument at every stage. His position, in essence as I saw it, involves two big points.

In dealing with these legal arguments, I can go straight to Mr Oakley’s Stage 3 and Mr Kemp’s second big point. Stages 1 and 2 go nowhere unless Stage 3 is viable. The Judge did not reach Stage 3 because he did not consider it necessary or appropriate to consider HRA arguments relating to the regulations (Reason [f]). I recognise that Mr Oakley submits that that was an error of approach. I also recognise that, if he were right, one possibility would involve remittal. Mr Oakley’s position, when I asked him, was that this Court needed to ‘roll up its sleeves’ and deal with the Boddington/ HRA question of whether the Regulations constituted a violation of A1P1 rights. I am satisfied in any event that I should not remit this case to the Magistrates Court, if this Court can decide the Boddington/HRA question for itself and if the answer is so obvious that no useful purpose would be served: see Hanif para 23. That, in my judgment, is precisely the position in this case. In my judgment, it is very clear that the prohibited conduct did not constitute a deprivation of A1P1 possessions. That is true in relation to the Judge’s Finding [b]: a wedding reception consisting of 30 guests at the pub at the time when the Regulations allowed wedding receptions but with a limit of 15 people. It is true of the prohibited conduct which is the subject of the judge’s Findings at [c]-[e], at which point the Regulations being breached prohibited on-sales but permitted off-sales. It is also true of the conduct which is the subject of the Finding [f], at which point the Regulations prohibited all sales.

In the Tre Traktorer case itself the state measure in question involved the revocation of the alcohol licence, whose maintenance was one of the principal conditions for the carrying on of the claimant company’s restaurant business and whose withdrawal had the adverse effect on goodwill and value of the restaurant (§53), meaning that the company could no longer operate the premises as a restaurant business (§55) which it had had to sell (§§23 and 55), a revocation which had caused the restaurant immediately to close, with serious financial repercussions, constituting a severe measure (§61). The revocation had taken place in July 1983 (§20), compensation had been refused in January 1984 (§22) and the restaurant had been sold in June 1984 (§23). Notwithstanding all this, the Strasbourg Court found that there was no deprivation of property in terms of A1P1. Although the applicant could no longer operate as a restaurant business, it kept some economic interests and property assets, which it finally sold; so that the state intervention constituted a measure of “control of the use” of property rather than a deprivation (§55).

In Mott (at §86) the Court of Appeal recognised, alongside the primary criterion for establishing a deprivation of property (the “extinction of all the legal rights of the owner”), the Strasbourg jurisprudence recognised “de facto expropriation”, so that “there will be a deprivation if the owner of property is deprived of meaningful use of it, although not if the owner remains free to sell it”. In that case, the Court accepted that the reality of the state intervention was “closer” to deprivation than to control. That was because the property interest was a lease, due to expire in April 2018, under which the holder of the interest could catch 600 salmon a year (Mott §1) and the public authority had, from 2012 onwards, restricted that catch so as to eliminate at least 95% of the benefit of that right to fish (§87). On no basis, in my judgment, can it convincingly be said that the restrictions in the Regulations had “extinguished all the legal rights” of the Appellant as owner of the pub, or that those restrictions had deprived the Appellant of “all meaningful use” of its property.

The present case is a “control of the use” of property scenario, to which the claimed “general doctrine” requiring “compensation” did not therefore arise (Mott §85). It engages the principle of “fair balance” (Mott §87; Tre Traktorer §62). The challenge, moreover, is across the board (all licensed premises or all those within a relevant tier), and not a particular executive decision (cf. Mott §88). The statement of principle endorsed in Mott §87 would be directly in play: “provided the state could properly take the view that the benefit to the community outweighs the detriment to the individual, a fair balance will be struck, without any requirement to compensate the individual”.

For these reasons, the HRA argument advanced in this case as a putative defence to criminal proceedings could not have availed the Appellant or Mr Henderson had there been a prosecution, whether relating to the tweeted 30 January 2021 reopening (Finding [F]), or the on-sale prohibition contravention (Findings [c] to [e]), still less the wedding reception on 30 October 2020 (Finding [b]). In my judgment, these conclusions are all very clear, based on the authorities which the Appellant relies (Tre Traktorer and Mott), and in light of the evidence and materials placed before the Court. The Appellant’s Stage 3 is unsustainable in law.

That is quite sufficient to answer Question [b]. But there is an additional Stage 3 observation to be made. Mr Oakley submitted that the Court of Appeal in Dolan – a case which he produced only when prompted again by me at the hearing, after I had raised it by email two days before the hearing – did not conduct any human rights evaluation, in any respect relevant to the present case. He is right to say that the Court of Appeal expressed only obiter views on the HRA points; that they related to the Regulations imposed in the early part of 2020; and that the A1P1 argument was raised by the owner of an aeroplane-lease business (§11) the economic harm to his business was said in the High Court not even to have been the consequence of the Regulations (§26). But it is unconvincing for Mr Oakley simply to seek to sidestep the fact that the Court of Appeal recorded the High Court as having concluded that there was “no evidence that the Regulations had deprived” the aircraft lease operator “or anyone else of any possessions” (Dolan §26) and the Court of Appeal’s own observation that it was “impossible to conceive” that there was through the Regulations in early 2020 any disproportionate interference with an A1P1 right, the margin of judgment to be afforded to the Health Secretary being particularly wide in this context, because “this was a ‘control of use’ case and not a deprivation of property case” and that the balance to be struck would have to take account of the well-known measures of financial support which the Government introduced in the exceptional situation created by the pandemic (Dolan §110). I say no more.

Where does that leave Stages 1 and 2? The appeal namely cannot succeed because, even if the Appellant were right on Stages 1 and 2, my conclusions in relation to Stage 3 are fatal. I will however record my views. As to Stage I, there is force in the first big point made by Mr Kemp, about the relevance to the broader crime prevention objective of the question of ‘going by the book’ and complying with what on the face of it is ‘the law of the land’. But, in my judgment, it is at least highly relevant for the licensing appeal court to consider and reach a conclusion on whether a defence is a good one, a defence having been identified, unless the licensing appeal court is able to say that the outcome would not be materially impacted by a conclusion that no offence has been committed. I can see that there could be cases where the attitude of the licensee to what is on the face of it required ‘by the book’ could be relevant and, of itself, sufficiently of concern. But if that is the position, I think it would need to be identified and spelled out. Test it this way. Suppose there is an offence subject to a reasonable excuse defence. Suppose the licensee believed, and contends, that there was a reasonable excuse. It would, in my judgment, be necessary in principle for the licensing appeal court to grapple with that defence and whether it was a good one. The fact that the defence arises as a vires argument from primary legislation, or as an incompatibility argument arising from freestanding primary legislation such as the HRA, does not make it any less of a defence if it engages the Boddington principle. The fact, moreover, the magistrates court has the function and expertise to deal in a criminal setting with a Boddington collateral challenge defence makes it difficult to see why a magistrates’ court dealing with a licensing appeal would not be equipped to consider such an issue. For these reasons, I would have accepted Mr Oakley’s analysis relation to stage 1. I say for these reasons, because I do not accept that Article 6 add anything. If it is legally relevant to the licensing appeal court’s function to consider whether crimes had been committed, then – for that reason – that question needs to be addressed. If not, Article 6 cannot give the question of whether criminal offences have been committed a relevance or require an evaluative determination that does not otherwise arise. Put another way, Article 6 is a procedural right to an independent and impartial tribunal where a civil right or obligation is determined. It is not a right to have issues determined which would not otherwise need determining. As to Stage 2, I would also have accepted Mr Oakley’s submissions. I see no reason why a Boddington defence would not arise if it could be shown that the restriction or prohibition in subordinate legislation, whose breach constitutes the crime, was unlawfully imposed because it violated an ECHR right guaranteed by the HRA, in circumstances where the contravention was not the inevitable and necessary consequence of primary legislation. Mr Kemp identified no basis for a contrary view. But none of this goes anywhere in light of the clear conclusions which I have arrived as to Stage 3.

There is one footnote to this part of the case. It is, I think, important to acknowledge that the Judge in his Reason [e] did correctly identify the central A1P1 issue which would arise in a licence revocation case. In Tre Traktorer itself, A1P1 rights were raised in the context of revocation proceedings regarding the premises licence. The analysis of A1P1 focused on the justification for the revocation. Viewed in terms of the justification for the revocation, the Judge’s reference at Reason [e] to a public interest justification for revocation as satisfying A1P1 is unassailable. This links to a point made by John Howell QC in Lalli at §41iii, explaining that the provisions governing a review and its outcome are compatible with licensees A1P1 rights because they enable a fair balance to be preserved, subject to appropriate safeguards, between the public interest in the proper regulation of licensed premises and the licensee’s interests. The reason why, in the present case, that straightforward and compelling answer, was not the whole of the A1P1 legal picture is this. In the particular circumstances of the present case, A1P1 was being raised in a different and much more indirect way. What was being said was that A1P1 rights would have constituted a complete defence in a criminal court, had there been any prosecution, which (if correct) gave the Appellant the platform to say that in law there was no breach of any restriction or prohibition, because the restrictions and prohibitions had been unlawfully imposed. That was a viable position at Stages 1 and 2, but it was a bad point at Stage 3 for the reasons which I have explained.

This is the Judge’s Question [c]. It arose out the Judge’s Reasons [a] (that the behaviour in refusing to provide CCTV was relevant to the licensing objective of preventing crime and disorder) and [c] (§10 above). It relates to the Judge’s Finding [g] (§9 above). As with the other Questions, the Judge had earlier summarised the arguments he had heard as follows (Stated Case §§11-12). On behalf of the Appellant:

The Judge referred to Sections 81(2)-(3) of the Regulation of Investigatory Powers Act 2000 (the “2000 Act”) which provide as follows:

The Judge set out the relevant licence condition (Judgment §43). It is found in Annex 2, as one of a series of conditions under a heading “Prevention of Crime & Disorder”. It begins by requiring a digital CCTV to be installed and maintained in good working order and be correctly time and date stamped” and goes on to provide for further conditions, including:

A first point concerns the meaning of “serious crime”. Mr Oakley submits that the Judge misdirected himself in law in this reasoning (Stated Case §16[c]: “I did not find that the Regulation of Investigatory Powers Act 2000 assisted. Whilst [section 81(2)] outlines the meaning of “serious crime”, that is a definition for the purposes of the Act rather than a definition of wider interpretation”. In the Judgment (at §45), the Judge said of section 81(2) that it “clearly defines ‘serious crime’ for this Act, i.e. RIPA. There is no attempt to state that ‘serious crime’ is defined in the interpretation section for every reference to serious crime. It is only as far as RIPA extends.” But that is wrong in law. True, the definition of “serious crime” in section 81(3) of the 2000 Act is defined in section 81(2) as for the purposes of “this Act”. But the 2003 Act uses the phrase “serious crime”, and when it does so – as it does for accelerated reviews (summary reviews) under s.53A as considered in Lalli – it provides (2003 Act s.53A(4)) that “‘serious crime’ has the same meaning as in the Regulation of Investigatory Powers Act 2000 (c. 23) (see section 81(2) and (3) of that Act)”. There is therefore very good reason why, on its legally correct interpretation, a licence condition using that same phrase should be construed in that same way. Those who draft licence conditions under the 2003 Act can safely be taken to intend the same concept with the same meaning, absent any identifiable contrary intention. Were it otherwise, the licence condition would be using a description without any definition, and yet supposedly having some other absent and unidentified meaning. I accept these submissions. I think they are correct. In my judgment Mr Kemp had no convincing answer to them.

But that is only the beginning. The appeal cannot succeed absence a material error of law. On this part of the case the Judge made very clear that there was a second, and freestanding, basis for rejecting the Appellant’s arguments. This was the Judge’s “in any event” finding. The judge found (Reasons [c]) that there was not a need for serious crime to be established in order for the authorities to request the CCTV, having found as a fact that Mr Henderson had refused to provide the CCTV on an ongoing basis and despite numerous requests (Finding [g]). As the Judge explained in the Judgment (§46):

There are two footnotes to the discussion of this Question. First, the Judge convincingly rejected reliance on so-called data protection justifications, which were not said on this appeal to raise any distinct issue. Secondly, Mr Oakley submitted that the Police investigation of potential breaches of the coronavirus regulations (the Judge’s Reason [c]) was “nothing to do with” the Appellant (as licensee) or Mr Henderson (as its 2003 Act s.15 “Designated Premises Supervisor”), but that position is plainly unsustainable in light of both the relevant Licence Condition and licensing objective section 4(2)(a).

For the reasons I have given, the appeal is dismissed. I answer the Questions in the Stated Case (§11 above) as follows: [a] yes; [b] yes; and [c] yes. Having circulated this Judgment as a confidential draft, I can deal here with any consequential matters. I will Order that the Appellant shall within 21 days pay: (i) the Respondent’s costs in this appeal summarily assessed at £4,650; and (ii) the Respondent’s outstanding costs as ordered and summarily assessed by the Judge on 16 March 2022 in the sum of £6,275.00. Costs must follow the event and are entirely apt for summary assessment. 21 days is appropriate. Costs schedules had been exchanged for the hearing and there is no element of surprise. I am unpersuaded by the Appellant’s solicitors’ 2-line submission: that they did “not agree” the costs; and that costs should be subject to detailed assessment. I do, however, adopt a broad-brush reduction from the £5,820 in the Respondent’s costs schedule; not because the costs are unreasonable but because I am not awarding costs on an indemnity basis.