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Judgments - Regina v. Warrington Crown Court, Chief Constable of Cheshire Constabulary

HOUSE OF LORDS

Lord Bingham of Cornhill Lord Mustill Lord Hutton Lord Millett Lord Rodger of Earlsferry

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

Regina v Warrington Crown Court Chief Constable of Cheshire Constabulary ex parte RBNB (a Company) (Respondents)

ON 20 JUNE 2002

[2002] UKHL 24

LORD BINGHAM OF CORNHILL

My Lords,

    1. The issue in this appeal is whether the Crown Court at Warrington could lawfully conclude on the facts found (as it did) that Mr Kehoe, an employee of an unlimited company named RBNB, was not or might not be a fit and proper person to hold a justices' licence to sell intoxicating liquor at the Weavers Hotel, Runcorn.

    2. This apparently simple question has proved difficult to resolve. Mr Kehoe's application, in effect for transfer to him of an existing licence which he held under a protection order, was dismissed by the Halton Licensing Justices sitting in Widnes on 5 March 1997. Mr Kehoe appealed against that refusal to the Crown Court at Warrington, but the refusal was upheld by His Honour Judge Clarke, sitting with licensing justices, on 10 October 1997. Mr Kehoe sought judicial review of that decision and was successful: on 3 April 1998 Sedley J quashed the crown court's decision on the ground that the policy adopted by the justices was unlawful; the matter was remitted to the crown court for rehearing. At the rehearing in the crown court, again before Judge Clarke and licensing justices, the parties agreed to accept the findings of fact made by the crown court the year before, but on 9 October 1998 the crown court reached the same decision, adverse to Mr Kehoe, as it had done before. At this stage Mr Kehoe obtained other employment but his employer, RBNB, sought judicial review of the crown court's decision as an interested party and on 15 December 1999 Newman J allowed the company's application and declared that the crown court's decision had been contrary to law. The Chief Constable of Cheshire appealed against that order but on 31 July 2000 the Court of Appeal (Otton, Robert Walker LJJ and Sir Ronald Waterhouse) dismissed his appeal: [2001] 1 WLR 2239. The Chief Constable renews his attempt to reinstate the crown court's second decision on appeal to the House.

    3. The critical findings of fact made by the crown court are very lucidly stated in the judgments of Judge Clarke and include the following:

    (1) "In August 1996 Mr Kehoe commenced employment with RBNB. In October of that year he was appointed Manager of the public house and he entered into an agreement, which ... provides the obligations of a Manager to ensure that the premises are run in a proper manner and it is clear that he has run these premises without problems. He is responsible to an Area Manager, a Mr Mackin. He has only had one matter of concern, that was not in relation to the premises, it was in relation to an attempted robbery at the premises, and he has a chain of command which leads him to Mr Walsh who is the Managing Director of RBNB. On 18 November 1996 he was granted a protection order. ... We have heard from a number of people in this case who are the participants to this appeal. Firstly, Mr Kehoe. This court has no doubt and finds as a fact that Mr Kehoe can be regarded as a fit and proper person to hold a licence. .... As I say, this court finds that there is no objection to the fitness and propriety of Mr Kehoe. He appears to us to be undoubtedly a fit and proper person to hold a justices' licence. ... Mr Kehoe told us he regards himself as accountable firstly to Mr Mackin his Area Manager and then to Mr Walsh his Managing Director. There has been no occasion when anyone else within the company has sought to give him guidance as to the management of the public house. He simply has no idea who the shareholders are."

    (2)"Mr Mackin, the Area Manager, he has considerable experience in the licensing trade. He has been employed by RBNB since September 1995. He reports to Mr Walsh. He is not aware at all as to who owns the company that he works for but there can be no complaint against him about his propriety to properly carry out his role as Area Manager. ... There is no objection again which we find as a fact to the Area Manager ... being fit and proper. ... Mr Mackin in effect says the same, describing himself as answerable to Mr Walsh."

    (3)"Mr Walsh is the Managing Director of RBNB, has been so since November 1994. A fellow director is a Mr Fisher who is a solicitor. Mr Walsh is a man with a considerable experience in the licensing trade. He has the control of the day to day businesses. He says he is not instructed by the shareholders as to how he ought to do his job, and he has 38 properties under his care. ... Mr Walsh effectively says, the running of the public houses and the brewery which is run by the company RBNBC is left entirely to him. He would not brook interference from the shareholders. If they sought to do so, he would resign and is prepared to undertake to inform the Police Authority at the very least, should he resign or his employment be terminated by the shareholders, who .... have the power to do so and as such, this court finds, in the position to ultimately control or influence the employees of this company, and to dictate the policy of the company should they so wish. Mr Walsh informed us that of the original 38 public houses, now only 28 are trading. 9 of those closed primarily because of the refusal to disclose the identity of the shareholders, the beneficial owners of the company. Including the Weaver, there are another 6 public houses subject to application to revoke their justices' licence. Mr Walsh in his charming way makes it very clear that he will respect the privacy of the shareholders to the utmost. He informs us that they are men of wealth though will not divulge their line of business, but they are not involved in anything illegal and relies upon the backing of the NatWest as indicative of the fact that the shareholders must be men of integrity. He has no formal contract of employment, merely employed upon a hand shake. He agrees that the shareholders decide if he remains in position. There is nothing to stop them from removing him from office and they could change the direction of the company without him. He says, "it's not just my word to accept the shareholder as a fit and proper person" relying as he does on National Westminster and [Deloitte's] letters."

    (4)"He [Mr Walsh] told us that there are six properties not trading. There are two of them ... in the Merseyside area. They have simply been closed, with … caretakers imposed to ensure the premises are not vandalised. Both those premises decided to close when it became apparent that the Police Authority would wish to know the identity of the shareholders. Mr Walsh was not prepared to reveal that matter to the police as he is not prepared to reveal that matter to the court and I note in the court below the justices were prepared to receive the information in private as to the names of the shareholders, but again he declined to do so … before this particular court and he is obviously pledged to that confidentiality and observes it to the letter. He told us about four premises in the West Midlands which are now no longer operating: Woodcock, which has been closed since November 1995 and its licence was revoked; the Cross Gate which has not operated since 11 January 1996; the Balmoral which has not operated since 14 March 1996 and the Coldstream which I think has been closed since May 1996. He told us that those public houses were closed in advance of revocation orders. He said there were a number of problems concerning the running of each public house, but one reason in each case for their no longer operating is the decision to decline to name the financial backers. ... [Mr Walsh] says that he has known the shareholders for some 30 years but he cannot provide us with any greater detail than that. ... Finally we heard from Mr John Fletcher who is the licensing officer to the Halton division. He himself had been perfectly satisfied and made it more than plain to us that he was perfectly satisfied with the way that Mr Kehoe runs the Weavers Hotel, and he himself said of course he had no reason to make any inquiry until he was alerted to the situation - by that I mean no reason to make any inquiries as to the principal shareholders - until he was alerted to the situation by a letter which emanated from the Birmingham Licensing Justices and then when he himself made the inquiries such as he was, there had been, I am afraid, no response. ... There are two shareholders in RBNB. They hold the ultimate beneficial interest in the unlimited company. The shareholders guaranteed the loan made by the National Westminster Bank to the company by which the company effected the purchase of 38 public houses formerly owned by the Greenalls group."

    (5)"We also find that the shareholders are not, as such, concerned in the day to day running of the business, the day to day nuts and bolts of the business, and from the evidence we have heard, it does not appear that they concern themselves in the management of the business day to day, they leave that to their management team and these are all matters which we find."

It was explained to the House that the two shares in RBNB were held through a series of companies in such a way that the identity of the shareholders was not publicly ascertainable.

    4. The ground upon which the justices and on two occasions the crown court ruled against Mr Kehoe's application was that since the identity of the ultimate beneficial owners of the shares in RBNB was deliberately withheld, they could not be sure that such owners were not engaged in some illegal or nefarious activity; and that in the circumstances they did not think Mr Kehoe a fit and proper person to hold the licence. In the first judgment of the crown court Judge Clarke observed:

    "But what is said to us by the police is surely a matter of concern, that one should know before you are granting any licence who effectively is backing the licence, who the owner of the premises [is] for whom this person is employed. For example, if you don't do that, then in fact you could be letting this be a haven for money from the sale of drugs to be pumped into a business or for other criminal activity being concealed within the running of the business. It is essential, they say, that you should know who is behind the running of these premises."

    5. In his second judgment Judge Clarke summarised the court's conclusion as follows:

    "Accordingly, this court exercising its discretion judicially as it must, and having regard to its responsibility as Licensing Justices to ensure that the licensing laws are properly observed, comes to the conclusion and seeking to exercise its discretion, it is proper for the court to inquire into the identity of the shareholders of RBNB so that the court can satisfy itself that the principal shareholders, in accordance with paragraph 4(1) of the policy, are not people who would be refused a licence as being not fit and proper to hold a licence. The court cannot be properly satisfied that they are fit and proper persons to exercise control and influence over the licensee, and his management of the premises. The court, not being able to carry out such inquiry, such that it can be properly satisfied, and although Mr Kehoe himself is a fit and proper person, the court is not able to grant Mr Kehoe's application."

    6. Paragraph 4(1) of the Halton Licensing Committee's statement of policy, adopted after the judgment of Sedley J, was in these terms:

    "No licence will be granted to an applicant of bad character or to anyone who is otherwise unfit to hold a licence. Neither will a licence be granted to a person who, though outwardly fit and proper himself or herself, might be influenced or controlled by others in his or her management of the premises where those others would be refused a licence on this ground."

The licensing regime

    7. The sale of intoxicating liquor in this country has been subject to a measure of statutory control for over 500 years. This statutory intervention has been prompted by the need to control the evils notoriously attendant upon such sale unless they are controlled: drunkenness; crime and disorder; brothel keeping; prostitution; unlawful gaming, and so on. An Act was passed in 1623 "for the better repressing of drunkenness, and restraining the inordinate haunting of inns, alehouses and other victualling houses". The Licensing Act 1872 was passed, according to its long title, for "the better prevention of drunkenness". The present regime of control, to be found in the Licensing Act 1964, reproducing many features of earlier statutes, rests (so far as relevant to this case) on six main pillars. First, it is a criminal offence punishable by imprisonment to sell intoxicating liquor without a licence (section 160) or in breach of the conditions of a licence (section 161). Thus the holding of a current licence is the effective instrument of control. Second, the power to grant or refuse licences is entrusted in the first instance to local licensing justices, who may be assumed to have a special knowledge of and insight into the needs of and conditions in their local area. Third, it is provided by section 3(1) of the Act that

    "Licensing justices may grant a justices' licence to any such person, not disqualified under this or any other Act for holding a justices' licence, as they think fit and proper."

Section 3(2) makes it plain that a justices' licence may be granted as a new licence or by way of renewal, transfer or removal. Fourth, a licence to sell intoxicating liquors of specified kinds, if granted, is not like a driving licence which, although limited to certain categories of vehicle, is a licence to drive at any place within the country at any time. A justices' licence is a licence to sell intoxicating liquor at specified premises, as the Act and the prescribed and recommended forms of justices' licence make clear: see Paterson's Licensing Acts 2002, 110th ed. Mehigan and Phillips 2001, at pp 779-780. Fifth, a licence if granted is for a limited period (section 26): the renewal of a licence may be opposed (section 7) and a licence may be revoked by the justices either of their own motion or on the application of any other person (section 20A). Sixth, an applicant or licence-holder aggrieved by the refusal, non-renewal or revocation of a licence may appeal to the crown court (section 21), where the judge or recorder will ordinarily sit, as happened here, with licensing justices able to contribute the benefit of their local knowledge and experience: Crown Court Rules 1982 (S1 1109/1982), rules 3(2) and 4(1).

    8. Two features of this licensing regime are important for present purposes. First, the power of licensing justices to grant a justices' licence is discretionary. Section 3(1) uses the permissive "may". Licensing justices are not bound to grant a licence to an applicant even if they think him or her to be a fit and proper person. They may have other legitimate reasons for refusing. But in the present case, as Lord Carlile of Berriew QC for the Chief Constable accepted, there was no extraneous reason for refusing Mr Kehoe the transfer which he sought. It was not contended that no one should be licensed to sell intoxicating liquor at the Weavers Hotel. The only issue was whether Mr Kehoe was a fit and proper person to do so. In resolving that issue, the justices in the first instance and the crown court in the second were required to form a judgment, based of course on the evidence before the court. They either did or did not think Mr Kehoe satisfied the statutory criterion. But such judgment did not involve the exercise of a discretion. If they thought Mr Kehoe fit and proper, their duty was to grant a licence (in the absence of any reason at all for not doing so). If they did not think Mr Kehoe to be fit and proper, or if they were in doubt whether he was fit and proper or not, their duty was to refuse a licence. The crucial issue for decision was whether he was or was not or might not be a fit and proper person.

    9. Secondly, some consideration must be given to the expression "fit and proper" person. This is a portmanteau expression, widely used in many contexts. It does not lend itself to semantic exegesis or paraphrase and takes its colour from the context in which it is used. It is an expression directed to ensuring that an applicant for permission to do something has the personal qualities and professional qualifications reasonably required of a person doing whatever it is that the applicant seeks permission to do. In a case such as the present an applicant for a justices' licence under the 1964 Act seeks permission to run a public house. Thus before granting a licence justices (or the crown court on appeal) must think the applicant has the personal qualities and professional qualifications reasonably required of a person seeking to run the particular public house for which he or she seeks a licence. The judgment must be made not only in relation to the particular applicant but also in relation to the particular premises. But the focus is on the particular applicant's suitability to run the particular public house.

    10. This focus is made plain by the 1964 Act. In section 8(A)3 of the Act (dealing with approval of prospective licensees) it is provided:

    "Licensing justices shall not approve a person as a prospective licensee of any licensed premises if, in their opinion, there is a likelihood that, if he became a licensee of the premises under subsection (2) of this section, he would be prevented by other commitments from properly discharging his functions as such a licensee".

In section 9(1) the reference to disqualification in section 3(1) of the Act is explained:

    "Without prejudice to the provisions of this or any other Act whereby a person may be disqualified for holding a justices' licence, the following persons shall be so disqualified, that is to say -

    (a) a sheriff's officer or officer executing the legal process of any court;

    (b) a person convicted, whether under this Act or otherwise, of forging a justices' licence or making use of a forged justices' licence knowing it to have been forged;

    (c) a person convicted, whether under this Act or otherwise, of permitting to be a brothel premises for which at the time of the conviction he held a justices' licence."

Further help is given by section 12(3) which permits licensing justices to refuse renewal of an old beerhouse licence on the ground

    "(a) that the applicant has failed to produce satisfactory evidence of good character; or

    (b) that the house or shop to which the application relates, or any adjacent house or shop owned or occupied by him, is of a disorderly character, or frequented by thieves, prostitutes or persons of bad character; or

    (c) that a licence previously held by the applicant for the sale of wine, spirits, beer or cider has been forfeited for his misconduct, or that he has previously been adjudged for his misconduct disqualified for receiving such a licence or for selling wine, spirits, beer or cider."

Authority

    11. That the focus of the justices' inquiry, when considering whether an applicant is a fit and proper person to be granted a licence, is on the particular applicant's suitability to run a particular public house is made plain by authorities to which this House was referred. In R v Hyde Justices [1912] 1 KB 645 the application was for transfer of an old (ante-1869) beerhouse licence. Section 23(2)(b) of the Licensing (Consolidation) Act 1910 required that a transferee should be a fit and proper person in the opinion of the justices to be the holder of the licence. In approaching that question the licensing justices took into consideration the terms of the agreement under which the proposed licensee was to hold the premises. Lord Alverstone CJ held (at p 656) that the prima facie meaning of the words "fit and proper person" was that the applicant must be a fit and proper person to hold a licence and carry on the business of a licence holder, and that the justices had gone much further than the consideration of whether the applicant was personally a fit and proper person to hold the licence. At p 657 he said:

    "I do not express any opinion that the terms of tenancy may not in some cases be relevant in considering whether a person is a fit and proper person to hold a licence. I can conceive that cases might exist in which the terms of tenancy were such that the licensee would have no proper control - would not really be the effective licence holder - and therefore might be a person who really ought not to have a licence granted to him. That would be a circumstance which the justices would be entitled to take into consideration. But, in my judgment, in the present case they have gone much further. They have not given their decision in this case upon the ground that the applicant is not a fit and proper person, nor upon the ground that he is not duly qualified as required by law, but they have decided that the conditions of his tenancy were such that from a business point of view he would not be a successful licence holder".

For that reason the justices were held to have erred. Hamilton J (at p 660) echoed the passage quoted from the judgment of the Lord Chief Justice. Bankes J (at pp 663-664) supported a broad approach to the expression "fit and proper person". But he added (at p 665):

    "In expressing the above views I desire to guard myself against being understood to say that an inquiry into the terms on which an applicant intends to carry on his business, either as between himself and the landlord or as between himself and the public, can never be material. It may be that the circumstances are such that the only legitimate inference from a consideration of those terms is that the applicant cannot carry on his trade without infringing the law, and if the only legitimate conclusion from the terms arranged between the landlord and the tenant is that in any ordinary business it would be impossible for the applicant to carry on his trade either without permitting drunkenness, or permitting gaming, or watering his beer, or some such infringement of the law, then I think the justices might legitimately come to the conclusion that such a man in such a position was not a fit and proper person to hold a licence".

12.

    Mellor v Lydiate [1914] 3 KB 1141 was largely concerned with determining the responsibility, as between employer and employee, for obtaining a licence in order to comply with the liquor licensing law. At p 1153 Lord Reading CJ, however, observed:

    "The justices' licence is not required for revenue purposes, it is required for the protection and preservation of public morals, and for the prevention of offences which are subversive of good order and the public safety: Ritchie v Smith (1848) 6 CB 462, 474. The object of the statutory requirement is to make the person who conducts and manages the business there transacted responsible to the licensing justices for its proper and orderly conduct and management in accordance with the requirements of the statute and of the licensing justices acting in pursuance thereof."

At p 1160 Lush J, referring to section 65 of the 1910 Act, which made it an offence to sell intoxicating liquor without a licence, said:

    "The section, which is one of a group of sections dealing with the conduct of licensed premises, has nothing to do with defining contractual rights or contractual obligations. It was for the purpose of securing the proper management of the business of selling intoxicating liquor on licensed premises that the enactment was passed."

Both these dicta, as was rightly pointed out, were obiter; but they do not lack persuasive value.

    13. The licensing justices who made the first instance decision in R v Holborn Licensing Justices, Ex p Stratford Catering Company Ltd (1926) 90 JP 159 made it a general (although flexible) rule to require the contracts of residential managers of public houses to provide for a minimum three month period of notice. The particular applicant to whom a transfer of a licence was sought was employed under a contract providing for notice of only four weeks. His application was accordingly refused. On appeal the justices' decision was upheld. It was considered prejudicial to recruitment of good candidates to afford so little security of employment, and the shortness of the notice was taken to indicate a lack of confidence by his employers in this applicant, who had had several changes of employment within a short time. The terms of his employment were held to be such as to render him indifferent whether he conducted the premises properly or not. In a public house which, for local reasons, was "difficult" and required "careful management", the justices were held to be entitled to regard the applicant as not meeting the statutory test of fitness and propriety. The decision was directed to the way in which the applicant would run the business if a licence were granted.

    14. In R v Preston Crown Court Ex p Cooper (unreported) Queen's Bench Divisional Court, Mann L J and Rose J, 22 November 1989, the application for a licence was made by one Cooper. The lessee of the premises in question was a company which would effectively control the premises in which it would be the applicant's duty to observe the licensing laws. From the note of reasons given by the crown court, it is plain why the applicant's challenge to the dismissal of his application by the justices was dismissed:

    "We are concerned that members of the Mason family will be involved in the running of the premises. Members of the family have flouted the law in relation to mock auctions and there have been a number of prosecutions in Blackpool. These matters were taken into account before the justices. There has now been a change in between the hearing before the magistrates and that, in the main, we find is only a cosmetic exercise. It is a change relating only to where the money was coming from - we find that these changes have been made only for the purposes of these proceedings (i.e. the appeal). We find that this application has behind it a family firm which we do not accept is law abiding and of the integrity required for this sort of venture. Whatever has been done between the decision of the magistrates and our decision is what we call 'a paper exercise'."

Thus the application for judicial review of the crown court's decision was refused because, in the view of the divisional court, the applicant was a stooge acting on behalf of people who would be involved in running the premises, who lacked integrity, who were not law-abiding and who (as the divisional court also pointed out) lacked experience in the licensing trade.

    15. Reference was made in the Chief Constable's written case, although not in oral argument, to R v London County Council, Ex p London and Provincial Electric Theatres Ltd [1915] 2 KB 466. In that case the council had refused music and cinematograph licences to a company on the ground that a large majority of its shares were held by alien enemies, namely persons resident in Germany. The refusal was upheld by a divisional court of the King's Bench and also by the Court of Appeal, both courts finding it possible to accept that the shareholders resident in Germany might use licences to influence the minds of the young and injure the interests of this country. It was not spelled out how they would achieve this ambitious result, and the finding may owe something to the hostilities prevailing at the time of the decisions. Three German directors had been removed on the outbreak of war, and there remained only three English directors. It is, however, plain that the ground of objection related directly to the function which the company was seeking permission to perform.

Discussion

 
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