Do interim steps continue pending an appeal - a solution at last?

It has been freshly reported that the case of R (o.a.o. 93 Feet East Ltd) v Tower Hamlets LBC may have once and for all resolved the issue of whether interim steps imposed on a summary review remain in force pending an appeal. It seems, however, that many are jumping the gun as the decision raises as many questions as it answers!

The main question is one that has been raised time and time again and is not helped by the drafting of the relevant section of the Licensing Act 2003. However, it was directly addressed in 2011 by a District Judge in the case Constable of Cheshire v Gary Oates - see our previous article - 'Summary Review - Interim Steps Continue or Not? - Breaking News'. In that case (which is not binding) the Judge ruled that interim steps do not continue after the Review determination. It is important to note that following on from the spate of cases in 2011, and apparently in accordance with Oates revised guidance was issued on the subject by the Home Office suggesting the point was, at the very least, not as cut and dry as they and the Police had earlier portrayed it.

The current case for consideration was heard before the High Court and took a different view. It is worth noting that this was only a permissions hearing and is unreported, rather than a full hearing, although we understand the matter was fully argued.
The reported facts are that the Metropolitan Police brought a summary review against a club pursuant to undercover operations which brought to light problems with the use and selling of drugs on the premises. The Licensing Authority suspended the licence in the interim steps hearing, maintained that position in the representations hearing and revoked the licence in the Review hearing with a view that the suspension should remain in effect until the determination of any appeal.

The licence holder appealed and brought a judicial review on the basis that the Licensing Authority could not apply interim steps beyond the determination of the Review.
The High Court Judge (Dingemans) ruled that interim steps can take effect beyond the Review determination and refused permission for judicial review so that the point could not be argued further.

We are already starting to see reports that this case has answered the question of interim steps pending appeal once and for all. However, the case leaves a number of questions unanswered. Firstly, licence suspensions can only last for a maximum of 3 months so what happens if an appeal lasts longer than this - can the premises reopen? In addition, licence holders have the right to apply for representation hearings against imposed interim steps (and the Licensing Act 2003 imposes no limit to the number of these that can be sought) and so can these be used to persuade the Licensing Authority to change the interim steps? Further, can an interim step of suspending a licence continue when at the final review hearing the licence is revoked? The two would seem incompatible.

There may still be life in this point yet!

We will keep you posted.