Public house – Premises licence – Licensable activities – Appellant owner and licence holder convicted of unauthorised licensable activities – Whether statute imputing acts of third party manager to premises licence holder – Appeal allowed
The appellant brewery company was the freehold and licence holder of a number of public houses. It managed some of the properties itself but let others to be managed by third parties. The appellant had been found guilty of four offences of carrying on a licensable activity, namely the provision of regulated entertainment, in breach of its conditions of licence in respect of one of its public houses. The tenant to whom the appellant had let the premises and the manager employed as designated premises supervisor had previously pleaded guilty to similar offences under section 136(1) of the Licensing Act 2003. The appellant, however, denied liability on the basis that, although it owned the freehold of the premises and held the premises licence, it had not carried on a licensable activity in respect of the public house.
At a hearing before a deputy district judge in the magistrates’ court it was found that section 16 of the 2003 Act specified a restricted list of persons eligible to apply for a premises licence and that the only basis on which the appellant could have applied was as a person who proposed to carry on a business involving the use of premises for licensable activities. The court further found that the use of the term involved denoted a broad range of business, including a landlord, such as the appellant, receiving rent from licensed premises. Moreover, in making an application for a licence the appellant must have considered itself to be carrying on a business that involved the use of premises for licensable activities. Accordingly, it was held that the respondents, as prosecuting authority, had proved their case beyond all reasonable doubt and, as the appellant had called no evidence, it could not avail of the defence of diligence under section 139 of the 2003 Act.
The appellant appealed against conviction by way of case stated. The questions for the High Court to determine were whether: (i) for the purposes of section 136(1)(a) of the 2003 Act, the acts of third parties were imputed to the premises licence holder as a matter of law; and (ii) the judge had been right to find that the appellant, as premises licence holder, was carrying on the licensable activities as charged.
Held: The appeal was allowed.
It was important to have regard to the natural meaning of the language used in section 136(1)(a) of the 2003 Act, which was directed not at the holder of the premises licence as such but at the person carrying on or attempting to carry on a licensable activity as a matter of fact. The section was focused on actual conduct and the due diligence defence under section 139 focused on the person’s own actions. The fact that a person was the holder of a licence in respect of premises did not mean that he was responsible for the licensed activities carried out at those premises. The determination of who was responsible was a question of fact. If parliament had intended the holder of the licence to automatically be liable if a breach occurred, the statute would have made an express provision to that effect.
It was misconceived to equate section 136(1)(a) with section 16, which referred to a person “carrying on a business which involved the use of premises for licensable activities”, since it was self-evidently different from a person carrying on a licensable activity himself.
The judge had made the impermissible leap from the appellant’s status as landlord and premises licence holder to the conclusion in relation to the carrying on of licensable activities. There was also a further error in the first question posed by the case stated in that it was clear that no such imputation was permitted.
In all the circumstances, there was no basis in law for the conviction and on the facts in the case stated there was nothing to support or prove beyond reasonable doubt that the appellant had been carrying on an unauthorised licensable activity. Although the magistrates’ court had not actually made a finding of fact that the appellant had carried out licensable activities at the public house, it was not appropriate to remit the case stated to be amended as it was clear from the evidence before the judge that he could not have made such a finding.
Philip Kolvin QC (instructed by Horsey Lightly Fynn, of Bournemouth) appeared for the appellant; Roy Light (head of legal and democratic Services, Poole Borough Council) appeared for the respondents.
Eileen O’Grady, barrister
