Transcript The role of committee members – David Daycock, Barrister

Licensing Training For
Members
The Role of Committee
Members
By David Daycock
Barrister - Iscoed Chambers Swansea
Aims of Today
1.
Overview of Hearing procedure
2.
Role of Members
3.
Good Decision Making:.
a. What is evidence
b. Do you have to give reasons?
c. The Rules of Natural Justice
4.
5.
Specific Issues
Any questions?
1.Overview of Hearing Procedure
Be aware - different, but similar procedures for Licensing Act 2003
Hearings, and others e.g. taxi licensing
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May be a different or same committee having Licensing functions
Generally the same members
Broad principles the same but need to be alert to differences e.g.
Licensing Act 2003 revolves around licensing objectives, policy,
guidance etc. Whereas e.g. Taxi licensing - concept of ‘fit and proper
person.’
Licensing Act 2003
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Procedure governed by Regulations - Key Points:
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Regulation 23
‘a discussion led by the authority’
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Regulation 22
‘at the beginning the authority shall explain...the procedure’
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Regulation 16
party...of given permission can question another and address the authority’
o
Regulation 23
cross examination NOT permitted UNLESS authority considers.....is.....required
o
Regulation 17
members may ask any question of any party or other person appearing
o
Regulation 18
the authority may take into account documentary or other evidence produced
BEFORE or
o
Regulation 19
WITH CONSENT OF OTHER PARTIES at the Hearing
the authority shall disregard any information which is not relevant to
(a) the application (representation or notice)
(b) or in the case of another person the application/representation etc
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(c) the promotion of the licensing objectives
o
Regulation 24
parties should be allowed an equal maximum amount of time
o
Regulation 31
any irregularity resulting from any failure to comply with...these Regulations before
the
authority has made a determination shall not of itself render these proceedings void
(Regulation 32 the authority can, if it considers any person to have been prejudiced as a result....take such
steps as it thinks fit to cure the irregularity)
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Closing submissions?
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Failure to comply with Regulations? - The Authority must ‘ have
Decision -generally within 5 days, but sometimes at end of hearing
regard ‘ to the Guidance, but can depart from it for ‘ good reason’ (
para 1.9 ). Likewise should follow Licensing policy, ( 1.12) but can
depart from it if there are ‘ good reasons ‘ to do so. NOTE; Slavish
adherence to a policy is unlawful – you must be seen to exercise a
discretion
2.Role of Members
Most important role – committee is ‘ quasi judicial ‘ ie like a judge
1. Hear representations
2.Evaluate submissions/evidence:
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disregard information not relevant (Regulation 19)
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give due regard and weight to relevant information
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generally first hand evidence is better than hearsay, direct evidence better
than circumstantial but not bound by strict rules
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decide on evidence and knowledge, not speculation or unjustified fears
(Thwaites 2009).
3.Ask Questions (Regulation 17)
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Any party
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Includes officers
4.Debate
Role of Members
5. Make a determination and / or set appropriate
conditions in light of evidence/ policy/ relevant
law and within powers relevant to licensing
objectives.
6.Move or amend motion.
7.Vote.
8.Should always given reasons - why made the
decision, why preferred ‘x’ evidence to ‘y’ etc.
Giving Reasons - Cases
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Melville v City of Glasgow Licensing Board 2012
“decision cannot stand because no adequate reasons were given....adequate
reasons explain not only what the decision is but how and why it was
reached.”
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R (Hope and Glory) v City of London Magistrates 2011
“The fuller and clearer the reasons the more force they are likely to
carry.”
3.Good Decision Making
1.Rules of natural justice – key question – how would you wish to be treated?; let both sides be heard;
no one should be a judge in their own cause; always keep, and be seen to keep, andn open mind.
2.Follow rules of procedure.
3. If Licensing Act 2003 - follow guidance.
4.Have regard to what is before you, in particular officer’s advice
5.Give due weight to ‘evidence’ received, and address this in a reasoned decision.
6.Arrive at a ‘Wednesbury ‘ reasonable decision’ within time limits.
7. State the decision you have reached; Give reasons – state why you accept some evidence, but reject
other.
Good Decision Making ( contd)
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Make sure the decision is within your power, proportionate, based on
what you have heard, and is within the law, the Licensing objectives and
your Licensing Policy
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FAILURE TO DETERMINE CASE CORRECTLY:
1. Appeal to Magistrates- see Hope and Glory Case; a de novo hearing,
but Magistrates will not lightly reverse a sound decision by members
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2. Judicial Review – rare, but can happen ; Khan v Cardiff Council
3. Costs! Generally see Bradford v Booth, but if a very poor decision by
members costs can be awarded against Council – V2 Nightcub Ruthin
2010
4.Specific Issues
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1.Why are Councillors more involved in Licensing than other areas?
2. What do Councillors bring in terms of skills,knowledge and
independence that is different from officers?
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3. How far can Councillors go in scrutinising or challenging officers
Taking Risks – when is it a) Illegal b) Just Risky ?
Can you / should you separate Licensing and Planning?
Thank you for listening……..
David Daycock
LLB (Wales),LLM (Bristol)
Barrister
Clerk & Monitoring Officer, MWWFRA
Associate Professor Swansea University
[email protected]
07968 318267