Memorandum by the Magistrates' Association,
Judicial Policy & Practice Committee (RL 15)
1. The Magistrates' Association of England
and Wales represents lay justices whose Licensing Committees have
traditionally administered the alcohol licensing laws and whose
courts have been responsible for the first stage appeals relating
to Public Entertainment Licences issued by local councils.
2. Under the 2003 Licensing Act, local authorities
became responsible for all alcohol and entertainment licences,
along with licences for the sale of hot food after 2300 hours,
which is also a part of the 2003 Act. However, the Magistrates'
Courts remain as the appeal court for all those who disagree with
decisions made by local council licensing committees.
3. Magistrates' courts also deal with those
who commit offences under the Act and see, on a day to day basis,
the consequences of over-indulgence in alcohol, whether it results
in stranger on stranger violence, domestic abuse or drink driving.
4. In view of the narrow focus of this hearing,
we would only want to comment on the issue of the handling of
the appeals process that arises as a result of the re-licensing
period after the First Appointed Day in February 2005. Magistrates'
Courts also have an on-going role as the appeal court for those
who wish to appeal decisions either on the review of licences
or applications for variations or new licences filed after the
6 August 2005. However, these matters are not issues of re-licensing.
5. Our main concern regarding the handling
of appeals during the re-licensing period that started in February
2005, was first expressed to officials at DCMS during a meeting
of the Licensing Advisory Group in April 2005, and then as part
of a joint letter from ourselves and the Justices' Clerks' Society,
sent to James Purnell, the Minister at DCMS responsible for the
implementation of the Act on 3 June (see copy attached).
6. This concern, related to the potential
problem of those geographical areas where there might be large
numbers of appeals that needed to be heard: Westminster is an
obvious example. The bunching of applications by licence holders
towards the second half of the six month period when existing
licensees could both protect and apply to vary their existing
licence terms, meant that some areas, where there are a large
number of licensed premises, could face problems if there were
a significant number of appeals against decisions on variations.
If local authorities failed to deal with any requests for variations
during transition, they were "deemed refused" and could
also then be appealed.
7. Any appeals under the 2003 Act require
the provision of courtroom space, a bench of three trained magistrates
and a legal adviser, plus other ancillary staff. Such appeals
will necessarily compete for limited court space with other regular
court work and a fluctuating volume of criminal trial work that
depends largely upon the level of not-guilty pleas.
8. As a consequence, were there to be a
significant number of appeals under the 2003 Licensing Act in
a particular area, these appeals might not be listed until well
into 2006. Even before the government's decision to review the
Guidance issued under the 2003 Licensing Act, this posed potential
problems for licensees at the bottom of the queue, who might have
to wait longer than their neighbours for a decision. Any revision
to the Guidelines could further exacerbate this situation, with
all original hearings likely on the original Guidelines and some
appeals being covered by those Guidelines and others by any revised
Guidelines. Of course, the Guidelines are only guidance and not
prescription, but their purpose was to add a degree of certainty
that would assist all involved in the licensing process.
9. Our suggested solution, based upon the
fact that from 1 April 2005 magistrates have the capability to
hear cases anywhere within the jurisdiction of their National
Commission, and not just within their local area, was to identify
potential licensing appeal "hot spots" and for the relevant
authorities to seek means by which additional teams of magistrates
and legal advisers might be asked to volunteer to move into these
areas from elsewhere, in order to cover just this potential short-term
transitional problem. As the DCMS are the lead Department on Licensing,
the suggestion was made to them. However, it was also made to
officials at the DCA at the meeting of their regular Licensing
Transition Group that was established in the autumn of 2003.
10. To date, we are unaware of any practical
steps having been taken at a national level to deal with the potential
problem of "appeal bunching" or "overload"
in a particular area. It may well be that the officials at DCMS,
who are monitoring the progress of the 2003 Act, have discovered
that no such "hot spots" for appeals are likely to arise.
Individual Courts Boards may seek more local solutions through
their discussions on listing issues at meetings of the Justices'
Issues Groups. However, some national guidance to these groups
on strategies for dealing with any potential problems might still
have been useful.
11. The Magistrates of England and Wales
are committed to offering the highest possible level of service
to all users of their courts. We acknowledge that problems during
the transitional period are a short-term phenomenon, but we would
not want any delays in the hearing of appeals under the 2003 Licensing
Act to be seen as a consequence of inaction on our part.
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