Lawfulness of remote licensing hearings

Earlier today the High Court issued its judgment in Walk Safe Security Services Ltd v London Borough of Lewisham [2024] EWHC 1787 (Admin) clarifying whether licensing authorities can use remote hearings.

In brief, the question before Justice Chamberlain was: “Under the Licensing Act 2003 and the Licensing Act (Hearings) Regulations 2005, may licensing committees in England hold licensing hearings remotely?” The short answer to the question is “Yes”

Background

The background to the matter is that the appellant operated a nightclub in Catford called Silks which was subjected to a summary review by the Metropolitan Police and ultimately the licence was revoked in a remote hearing in October 2022. Since 2020 this particular licensing authority (London Borough of Lewisham) had held all of its licensing hearings remotely.

An appeal to Bromley Magistrates’ Court considered the preliminary issue as to whether remote hearings were permissible and in April 2023 the District Judge confirmed her decision that they were. Today’s issued decision therefore dismisses the appeal against the District Judge’s ruling from last year.

Reasons for decision

Justice Chamberlain provided five points in his judgment he deemed relevant to “favour a construction according to which remote hearings are permissible in principle.”

First, “the term ‘hearing’… can be applied both to an in-person hearing and to a remote hearing using video-conferencing technology” so it is not excluded from applying to remote hearings.

Second, the legislation references the “place” at which the hearing takes place but “the term “place” is neither defined nor accompanied by words connoting a single geographical location…Without such qualifying language, an online platform could properly be described as a “place”.”

Third, “licensing hearings… are governed by a regime which is statutorily distinct from that which governs local authority meetings. Licensing committee hearings are not properly described as “part of the mechanism of government of the country”.”

Fourth, the relevant legislation “reflects an intention on the part of Parliament… to confer maximum procedural flexibility on licensing committees, subject to the Regulations. The question is therefore not whether the Regulations expressly authorise remote hearings, but rather whether they expressly prohibit them…there is no clear indication that remote hearings are precluded.”

Fifth, “there is nothing in any of the jurisprudence of the Strasbourg Court to suggest that remote hearings necessarily give rise to a violation of any ECHR procedural rights. They may do in particular cases, in which case a licensing authority would be obliged to consider alternative arrangements. But there is no suggestion that the remote hearings in the present case gave rise to any unfairness of that kind.”

The decision therefore makes clear that English and Welsh licensing authorities can continue to hold remote licensing hearings as long as there is no procedural unfairness, something that would need to be considered on a case-by-case basis.