Interim steps - One small step for an Operator, no giant leap for the law

Yet another case has considered the effect of Interim Steps or, should we, say tentatively touched upon the effect, following the issue of an "Expedited Review".

The latest matter followed an application for Expedited Review brought against the Victoria Pub in Hayes in relation to allegations of drug dealing at the premises.

At the interim steps hearing the licence was suspended, a decision which was subsequently upheld at the representation stage. At the full Review which followed the licence was revoked. Further, the Committee made a separate decision to continue the suspension of the licence as an interim step, pending any Magistrates' Court appeal, thereby preventing the premises from being able to trade until the Appeal decision, or never if the Magistrates were to subsequently uphold the decision of the Committee.

The Licensees lodged a Claim for Judicial Review to, amongst other things, challenge the interpretation of the statute that sees interim steps extending beyond Review and seeking guidance on the point generally.

Initially, Mostyn J granted an Order lifting the interim steps on the basis that the "claimants will suffer irremediable and severe economic damage". However, on 27 August 2014, Collins J discharged the Order made by Mostyn J as well as refusing the claim for Judicial Review, the decision of which can be found here.

BUT albeit the Order was discharged it was acknowledged that:

1. "The legislation is badly drafted and is by no means clear. Whatever the true construction, there clearly should be a procedure which enables there to be a possibility of suspending the effect of a determination or of any Interim order pending appeal."
2. "There is undoubtedly a serious lacuna in the legislation since it was in my view be disproportionate in terms of Article 1 Protocol l if there were no power to suspend an adverse decision pending appeal or a fortiori no power to give immediate effect to a decision that the  application under s.S53A was not made out albeit an Interim order had been made".
3. "s.53C(2)(c) does indeed seem to be  an unnecessary provision since s.53B(1) makes clear that interim  steps are what they say, namely steps taken pending determination and once a determination has come into effect they will automatically lapse. However, it must be assumed that Parliament meant s.53C(2)(c) to have some effect and in my judgment it only makes sense if it implies and must enable justice to be done carry within it by the words in brackets  a power to vary or indeed to remove any interim steps pending the expiry of 21 days or any appeal."

Unfortunately, although Collins J recognised "that the provisions are far from clear and it may be a judicial decision is needed" he went on to state in his decision that  "...this is the wrong case since it is clear beyond doubt that for good reason the committee decided that the suspension should remain pending appeal. This therefore is not the case for the matter to be determined since the facts are against the claimants."

We must now therefore wait for an 'appropriate' case when the issue might finally be decided.

In the meantime, operators must continue operating within the black hole that is interim steps.

We are obliged to Sarah Clover, Kings Chambers who represented the Claimant Licensees, for providing us with details of this case.