ADMINISTRATIVE COURT UPHOLDS APPEAL BY WAY OF CASE STATED REGARDING THE PROCEDURAL POWER TO REMIT CASE UNDER THE LICENSING ACT 2003

Hammersmith and Fulham London Borough Council v. Food City Express Ltd [2008] WLR (D) 314

The licensing authority appealed by way of case stated against the decision of a magistrates' court to remit a case on the basis that the authority's discretion should have been exercised differently.

When hearing the application to vary the licence the committee had waited ten minutes for the applicant to arrive. The committee decided to proceed in his absence in accordance with reg 20 (2) of the Licensing Act 2003 (Hearings) Regulations 2005. The district judge concluded that the committee had been entitled to act as they did as a matter of law but that applying common sense having regard to traffic and parking problems 10 minutes was too short a wait so as to make a fair hearing impossible under Article 6 of the ECHR.

The court held that the district judge had not been entitled to substitute his own view for the lawful exercise of the committee's discretion. While the district judge had a power to remit the matter to the committee he had aced unlawfully by having regard to an irrelevant matter which was his own view as to how long the committee should wait. The Court also noted that Article 6 rights were protected through the procedural safeguards and in any event the hearing before the magistrates' court was a de novo hearing.

Saira Kabir Sheikh appeared on behalf of the London Borough of Hammersmith and Fulham.