Summary Review - First s.53D interim steps appeal dismissed

It is being reported by Cornerstone Barristers that Bedford Borough Council have successfully resisted what is thought to be the first appeal under s.53D of the Licensing Act 2003, against a decision that an interim step of suspension should continue pending an appeal against the decision on the summary review – which was to revoke the licence.

Despite a damning judgment by the Borough Council’s sub-committee on the summary review, deciding that it had no confidence in the ability of management to put matters right in future following what was described (by the PLH’s counsel, no less) as a “dreadful night which went badly wrong”, the PLH appealed against the substantive decision (as might be expected) but also against the sub-committee’s decision that the premises licence should remain suspended pending that appeal.

The latter appeal - in respect of the interim step - was heard at Luton Magistrates’ Court by a Deputy District Judge. He did not accede to the Appellant’s request to call live evidence; instead he dealt with the appeal on submissions in three hours; reserved judgment but delivered it five days letter; held that such an appeal was to be decided on similar principles to other LA03 appeals (i.e. the ultimate question was whether the decision to suspend pending appeal ‘is wrong’ having regard to all he had heard); and on the substantive case found that the sub-committee’s decision to suspend pending the appeal was a proportionate response to the facts it had found.

This was in line with Bedford BC’s approach at the appeal, which was to argue that a s.53D appeal could not be a ‘pre-run’ of the merits of the substantive appeal, and should focus on the question of whether the decision of the sub-committee to suspend the licence pending appeal was itself sound. It resisted the attempt to call live evidence.

It is being suggested that this decision paves the way for local authorities, challenged under s.53D, to take a robust line in defending such appeals, save where there is an obvious flaw in their substantive decision such that suspending the licence pending an appeal would compound any unfairness. That is likely to be a most unusual situation and should not be used as a ‘gateway’ to generalised attacks on the underlying decision.

Josef Cannon (Cornerstone Barristers) acted for Bedford Borough Council on the appeal, and for the Bedfordshire Police in the Summary Review proceedings.