Regina v. Warrington Crown Court, Chief Constable of Cheshire Constabulary
16. On behalf of the Chief Constable Lord Carlile advanced a series of well-considered propositions designed to show that the justices were entitled to look beyond the probity of the individual applicant; that the beneficial ownership of the business conducted on the licensed premises could be relevant; that the justices were entitled to refuse a licence where the business was carried on for the benefit of someone who would not himself be granted a licence; that the justices were entitled to follow a policy provided that they considered each individual case on its merits; that the justices had been entitled to ask to be informed of the identity of the ultimate beneficial owners of RBNB; that the responsibility of assessing any information given and of drawing any appropriate inference from the denial of such information was that of the justices; and that the justices could properly regard the refusal of such information in the context of all the evidence as showing that the applicant had failed to discharge the burden of showing that he was a fit and proper person to hold a licence. Counsel reminded the House that it, like the Court of Appeal and Newman J, were entitled to exercise only a power of review, not the primary decision-making function which belonged to the justices and the crown court.
17. With much of this submission one may, in general terms, agree, but it diverts attention from the simple and specific question which, before the justices and the crown court, had to be asked and answered: was Mr Kehoe a fit and proper person to be the licensee of the Weavers Hotel? The factual findings already recited already make it plain that he was, personally and professionally, a fit and proper person. In other words, he could be relied on to run the licensed premises in a competent and law-abiding manner, in accordance with the conditions of any licence granted. Mr Kehoe was not of course a free agent: he was answerable to his area manager Mr Mackin. But Mr Mackin also was in every way a fit and proper person. Mr Kehoe was also answerable to Mr Walsh, his managing director, but Mr Walsh also was in every way fit and proper. These findings preclude any inference that Mr Kehoe was a mere stooge or that Mr Mackin or Mr Walsh would suborn or pressure him to act unlawfully or improperly or that they would give effect to instructions, if such were received, to do so. There was nothing to suggest that the ultimate beneficial owners of the employing company interfered in the running of any of the public houses owned by the company; the only finding suggested that they did not. Whoever these ultimate owners may be, a respectable bank was evidently willing to advance them what one may assume to have been a significant sum of money. It is not easy to see how they could exert pressure on Mr Kehoe to act improperly in his running of the licensed premises without disclosing their identity, the very thing they have gone to such lengths to avoid.
18. The adamant refusal of the beneficial owners to reveal their identity, to the point of preferring that a number of public houses should close rather than they should made disclosure, naturally invites speculation what their motives may be. But such speculation is relevant only if and to the extent that it throws doubt on Mr Kehoe's ability to perform his duties as a licensee. It may, for example, be that the ultimate beneficial owners are seeking to avoid tax, or to launder money earned through criminal activity. But tax evasion and money laundering are not evils engendered by the sale of intoxicating liquor. It is no part of the licensing justices' function to enforce fiscal or money-laundering legislation, and such activities (even if there were any evidence of them) would be irrelevant save to the extent that they threw doubt on the integrity of a proposed licensee or his ability to perform his duties as such in a lawful and proper manner.
19. In the result, I agree with the decision of the Court of Appeal, although for somewhat different reasons. That court ( 1 WLR 2239, 2250-2251, para 43), agreeing with Newman J, considered that the crown court had erred in failing to carry out a balancing exercise. I do not for my part think that the task of the crown court involved a balancing exercise. It involved asking the question posed in paragraph 17 above and answering it by an exercise of judgment in the light of all the evidence. Had it approached the case in this way there was only one answer the crown court could rationally have given: that Mr Kehoe was a fit and proper person to be the licensee of the Weavers Hotel. In giving the answer it did, adverse to Mr Kehoe, the crown court took account of considerations irrelevant to its decision. I would accordingly dismiss the Chief Constable's appeal with costs.
20. I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Bingham of Cornhill. For the reasons he gave I would also dismiss the appeal with costs.
21. I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Bingham of Cornhill. I agree with it, and for the reasons he gives I also would dismiss this appeal.
22. I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Bingham of Cornhill. I agree with it, and for the reasons he gives I too would dismiss the appeal.
LORD RODGER OF EARLSFERRY
23. I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Bingham of Cornhill. I agree with it, and for the reasons he gives I too would dismiss the appeal.
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