Blackpool Council, R (on the application of) v Howitt [2008] EWHC 3300 (Admin)

Case No CO/7226/2008[2008] EWHC 3300 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 2 December 2008
Strand
London WC2A 2LL
B e f o r e:
HIS HONOUR JUDGE DENYER
Between
THE QUEEN ON THE APPLICATION OF BLACKPOOL COUNCILClaimantv
Between
HAMISH HOWITTDefendantSECRETARY OF STATE FOR CULTURE MEDIA AND SPORTIntervenor
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr Ben Williams (instructed by Blackpool Council) appeared for ClaimantMr Hamish Howitt appeared in person for in personMiss Samantha Broadfoot (instructed by Treasury Solicitors) appeared for Intervenor
J U D G M E N T

JUDGE DENYER:

[1]This is an appeal by way of case stated from the decision of the Deputy District Judge given on 9th April 2008. On that date she allowed an appeal by the respondent against a decision of the local licensing authority to revoke the respondent's premises licence in respect of Delboy's Sports Bar, Rigby Road in Blackpool.[2]The matter arose in this way. On 1st July 2007 the Health Act 2006 came into force. Section 8 of that Act is in these terms. By section 8(1):
"It is the duty of any person who controls or is concerned in the management of smoke-free premises to cause a person smoking there to stop smoking."
By subsection (4) of section 8:
"A person who fails to comply with the duty in subsection (1) ... commits an offence."
Lastly, although I shall return to this, subsection (7):
"A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding a level on the standard scale specified in regulations made by the Secretary of State."
[3]The respondent to this appeal, Mr Howitt, is an avowed opponent of the smoking ban. He believes it is a gross interference with individual liberty and property rights. It may be that others agree with him. In any event he has allowed people to smoke in his pub. He has been convicted on at least two occasions of contravening section 8, ie failing to stop people from smoking. He made it clear to the Deputy District Judge and indeed to others that he intended to continue with that stance.[4]Thus it was that the matter came before the licensing authority pursuant to the review provisions of section 51 of the Licensing Act. That in turn brought into play section 4 of that Act. By section 4 of the Licensing Act 2003 under the heading "General duties of licensing authorities", it is provided in section 4(1) that:
"A licensing authority must carry out its functions under this Act ('licensing functions') with a view to promoting the licensing objectives"
. By subsection (2) the licensing objectives are set out. I am particularly concerned with section 4(2)(a), namely the licensing objective of "the prevention of crime and disorder." Again, although I shall return to this later, I note that by section 4(3):
"In carrying out its licensing functions, a licensing authority must also have regard to- (b) any guidance issued by the Secretary of State under section 182."
[5]As I say, the matter had come before the licensing authority by way of review. Section 52 of the Act deals with the determination of a licensing review. That is set out at page 82 of the bundle. By section 52(1):
"This section applies where- (a) the relevant licensing authority receives an application made in accordance with section 51."
By subsection (2):
"Before determining the application, the authority must hold a hearing to consider it and any relevant representations."
And by subsection (3) - (3) and (4) being the important parts:
"The authority must ... take such of the steps mentioned in subsection (4) (if any) as it considers necessary for the promotion of the licensing objectives."
Those steps include in (4)(e) the revocation of the licence. The licensing authority, purportedly applying the section 4 criteria decided to revoke the respondent's licence and it was that decision that was successfully appealed by him to the Deputy District Judge.[6]Her judgment very much centres on the meaning of the words "the prevention of crime and disorder" in section 4 of the Licensing Act. The appellants says that "crime" and "disorder" are to be regarded disjunctively. The respondent says that the words are to be read conjunctively so that effectively the word "disorder" qualifies the word "crime". It was this latter interpretation that appealed to the Deputy District Judge.[7]In the stated case, and I will just select certain passages from it, she says as follows. Having found as a fact and indeed by agreement that the respondent did not enforce the smoking ban and the respondent effectively confirming to her that he would continue to flout the smoking ban, she set out (at page 14 of the bundle) the contentions thus:
"It was contended that I should consider the words 'crime' and 'disorder' independently from one another and adopt a strict interpretation of the word 'crime' with its ordinary, everyday meaning in the context of the licensing objectives. It was submitted that in doing so, I should then find that the respondent would continue to commit 'crime' on the premises."
Then she said this:
"I was of the opinion that the term 'crime and disorder' under the Licensing Act 2003 was directed towards the drunken, yobbish, alcohol-related behaviour..."
She continued:
"I did not agree that the word 'crime' should be given the strict interpretation but rather that it formed part of a phrase that covered the kind of behaviour, described above..."
She went on to say:
"... smoking is a Public Health issue, which is not a licensing objective for the purposes of the Act. I was therefore of the opinion that the issue of unlawful smoking was not relevant to the objectives of promoting the prevention of crime and disorder."
She also noted that she would have expected, given this was a crime and disorder objection, some police representation and she was also concerned about the dangers of duplicity and that if she were to find in favour of the appellants it would effectively be punishing the respondent twice because he had already been prosecuted under the Health Act.[8]The question for me is indeed the one that the learned Deputy District

Judge poses as the question for this court at page 15 of the bundle:

"Was the court correct to decide that evidence of unlawful smoking on the licensed premises was not relevant to the licensing objective of promoting the prevention of crime and disorder?"
[9]I will deal with a couple of ancillary points which I have already mentioned arising from her ruling/statement of case. It seems to me that the absence of police representation or objections at the hearing is frankly irrelevant to a consideration of the issue.[10]So far as the duplicity point is concerned, this seems to me to confuse the issue of culpability of an individual under the Health Act with the duty of a licensing authority to promote the licensing objectives.[11]As a matter of strict definition it seems to me that an offence contrary to section 8 of the Health Act is a criminal offence. I have already read subsection (7) of section 8, but I will just repeat myself in that respect. By subsection (7):
"A person guilty of an offence under this section is liable on summary conviction to a fine..."
So it is clear that section 8 creates a criminal offence which is punishable by way of fine.[12]It is equally obvious that of itself and by itself a section 8 offence is not a crime of disorder. The respondent therefore says it is not a relevant matter for the purposes of section 4(2)(a) of the Licensing Act and at this point it is necessary to consider section 4(3) of that Act and the whole question of the Secretary of State's guidance. Again, as I have already said, but I will repeat, by section 4(3) in carrying out its licensing functions a licensing authority must also have regard to any guidance issued by the Secretary of State.[13]The relevant guidance, which came into force on 28th January 2007, is set out at page 101 and following of the appellant's bundle. I shall refer to one or two parts of the guidance. At page 115, which is paragraph 1.23 of the guidance:
"The Licensing Act is part of a wider Government strategy to tackle crime, disorder and anti-social behaviour and reduce alcohol harm."
So that gives us some idea of the broader purposes behind the current strategy. At paragraph 1.28 and following, set out at page 116, there is a reference to certain specific statutes relevant to that strategy: the Crime and Disorder Act 1998, the Anti-social Behaviour Act 2003 and the Violent Crime Reduction Act 2006. Those are specific examples of what are said to be related legislation. They do not necessarily assist greatly in resolving the issue with which I have to deal. But if one goes to page 187 of the bundle there is there set out paragraph 11.25 of the guidance and that does have some relevance. At paragraph 11.25 we find the following:
"There is certain criminal activity that may arise in connection with licensed premises, which the Secretary of State considers should be treated particularly seriously. These are the use of the licensed premises: • for the sale and distribution of Class A drugs and the laundering of the proceeds of drugs crime; • for the sale and distribution of illegal firearms; • for the evasion of copyright in respect of pirated or unlicensed films and music... • for the purchase and consumption of alcohol by minors... • for prostitution or the sale of unlawful pornography; • by organised groups of paedophiles to groom children; • as the base for the organisation of criminal activity, particularly by gangs; • for the organisation of racist activity or the promotion of racist attacks; • for unlawful gaming and gambling; and • for the sale of smuggled tobacco and alcohol."
[14]I appreciate straightaway the point that the respondent makes which is that no one has ever alleged that his premises have ever been used for anything like that and I make it absolutely plain that I fully accept that. But the point I think is this: Although on any view those are serious crimes, they do not necessarily involve any disorder on the premises. I have already indicated that there is no suggestion that such activities go on at the respondent's pub, but the fact that they are not necessarily disorderly offences rather undermines the argument that crime and disorder are necessarily conjoined for the purposes of section 4. Of course I accept that the guidance set out in that document is certainly not to be construed as a statute. I was helpfully referred by counsel for the Secretary of State to the decision of Beatson J in a case involving Wetherspoons [2006] EWHC 815 Admin., [2007] 1 All.ER 400. The facts need not concern us. At paragraph 58, which is at page 417 of the report, there is this short passage:
"... guidance such as this is not drafted in the tight way in which a statute is drafted."
Then there is a reference to a couple of other decisions, including a decision of Sullivan J where Beatson J quotes from that judgment:
"'a legalistic approach to the interpretation of development plan policies is to be avoided'. A similar approach has been taken in contexts other than planning: see the authorities referred to in paragraph 82 below. These qualities apply to the licensing guidance in this case and must be taken into account in considering whether the statements favouring a general lengthening of licensing hours preclude the application of a cumulative impact policy to an application to increase hours."
The point of course being that one takes the guidance and guidelines into account because the statute says they have to be taken into account, but they are not to be construed as if they were themselves a statute.[15]Let me at this point deal with another point raised by the respondent. He says, and rightly says, that when the Licensing Act 2003 was introduced the smoking ban did not exist - in other words the crime of permitting smoking in pubs was but a glint in the eye of anti-smoking campaigners. However, that is not really to the point. Times move on; times change; legislative changes are introduced and technology and science may advance, all of which may impinge upon the interpretation of a statute and this is very much dealt with in the speech of Lord Bingham in a decision called Quintavalle [2003] UKHL 13, [2003] 2 AC 687. That was a case in fact under the Human Fertilisation and Embryology Act 1990 where technology had indeed moved on (if technology is the right word to apply to medical science) in and about the creation of embryos. At paragraph 9 of his speech, Lord Bingham said this:
"There is, I think, no inconsistency between the rule that statutory language retains the meaning it had when Parliament used it and the rule that a statute is always speaking. If Parliament, however long ago, passed an Act applicable to dogs, it could not properly be interpreted to apply to cats; but it could properly be held to apply to animals which were not regarded as dogs when the Act was passed but are so regarded now. The meaning of 'cruel and unusual punishments' has not changed over the years since 1689, but many punishments which were not then thought to fall within that category would now be held to do so. The courts have frequently had to grapple with the question whether a modern invention or activity falls within old statutory language... A revealing example is found in Grant v Southwestern Properties Ltd (1975) where Walton J had to decide [in those far off days of prehistoric technology] whether a tape recording fell within the expression 'document' in the Rules of the Supreme Court. Pointing out ... that the furnishing of information had been treated as one of the main functions of a document, the judge concluded that the tape recording was a document."
From this, therefore, it does seem to me to be abundantly clear that the words of a statute can clearly apply to future events, including changed future events, provided only that those future events fall within the wording of the statute. Smoking in pubs was not a crime in 2003 but it was made so in 2007.[16]Words in a statute are, so far as possible, to be given their ordinary and natural meaning. As I have already indicated, although not a crime of disorder permitting smoking in a place where smoking is barred is a criminal offence by virtue of section 8 and as therefore a simple matter of definition it is a crime.[17]The use of the word "and" can sometimes suggest a conjunctive relationship between two activities, but not necessarily so. It can have a disjunctive use. At divider 6 of the intervenor's bundle there is a fairly lengthy passage from Bennion on Statutory Interpretations set out. I simply go to what is page 1192 from the extract that has been photocopied. There there is a heading "Disjunctive use of 'and' The word 'and' may be used disjunctively as well as conjunctively." The learned author gives this illustration:
"The Court of Appeal held that in article 10 of the European Convention on the Recognition and Enforcement of Decisions Concerning Custody of Children, given the force of law by the Child Abduction and Custody Act 1985, the statement that 'recognition and enforcement' of a foreign judgment may be refused was to be construed disjunctively. This meant that a judgment might be recognised but not enforced. The court had regard to the statement in Dicey and Morris on the Conflict of Laws that 'while a court must recognise every foreign judgment which it enforces, it need not enforce every foreign judgment which it recognises'."
[18]With that in mind, one goes back to the wording of section 4. It is true, and indeed is the case, that it is hard to think of any disorderly behaviour which would not in fact be criminal. Equally though, as the Secretary of State's guidelines show, there may be many examples of serious criminal behaviour, serious crimes, which do not involve disorder. To give the section the meaning for which the respondent contends and the Deputy District Judge gave it might effectively lead to an authority having to ignore that guidance from the Secretary of State, which by definition the licensing authority and indeed the court has to have regard to by virtue of section 4. Like the respondent I agree that to regard smoking in a public place such as his pub as a serious crime on a par with dealing in heroin, gun running or even flogging counterfeit videos is an absurdity. Nevertheless, it is a crime.[19]Given the respondent's convictions and his stated intention to carry on the permitting of smoking, the licensing authority were entitled to say that the revocation of his licence did promote the licensing objective of preventing crime.[20]The answer therefore to the learned Deputy District Judge's question at page 15 of the bundle, the question I have to decide, namely "Was the court correct to decide that evidence of unlawful smoking was not relevant to the licensing objective?" the answer is yes the court was wrong. Accordingly I allow this appeal by way of case stated.[21]That is the end of the judgment. I agree that it seems to follow, as we said right at the outset -- this is not part of the judgment -- I would still hope that some sort of agreement can be arrived at because he is clearly a concerned publican, but I accept that is not my function and not my role. So for the moment I am effectively restoring the decision of the licensing authority.[22]MR WILLIAMS: My Lord, I am grateful. I do not know if Mr Howitt wishes to say anything at this stage?[23]MR HOWITT: Only that I think at the end of the day, with due respect, law and justice are two different things.

JUDGE DENYER: I am afraid that is often the case.

[25]MR HOWITT: What I would ask for is, if you could just enlighten me today, I will respect your decision, I will not, I will give an undertaking if need be, however, that I will not allow smoking because this is what----

JUDGE DENYER:

[26]I cannot actually deal with that. I hope though that you and the licensing authority can sort it out.[27]MR HOWITT: I would like to ask you, sir, for - I would like obviously to appeal against this decision. Will I get the stated case in writing then from yourself so that I can----

JUDGE DENYER: You can apply, I think, for a copy of the judgment.

[29]MR HOWITT: Apply for a copy, yes, and I mean that with respect, sir. I mean no disrespect.

JUDGE DENYER:

[30]I do not take these things personally at all. The only thing is you will need leave either from me or from the Court of Appeal. I think I am disinclined to give you leave because I think the answer was fairly plain. So I am going to refuse you leave to appeal my decision to the Court of Appeal. That does not prevent you going to the Court of Appeal and trying to persuade them to grant you leave. But you might start running into some fairly heavy costs sanctions if you do.[31]MR HOWITT: I think it is of great public interest and I think this is one of the few cases where the public, I mean that the taxpayer should pay for the costs, because of the public interest.

JUDGE DENYER:

[32]Yes. Let me make a note of the reasons why, as I am obliged to, I am not giving permission for Mr Howitt to appeal.[33]MR HOWITT: Sir, on that, I do not know if I am allowed to state my reason for it. My reason for it is clearly you have stated that crime and disorder, that the way you take it that it happens in public does not necessarily have to happen in the pub. I am saying that contraband and counterfeit selling drugs lead to disorder either inside the pub or outside the pub, it is immaterial. These are serious crimes that lead to disorder at any point, at the point in the pub or a point outside the pub, certainly all these crimes all lead to disorder at a later date, if not that day, and I am saying smoking in a pub leads to no disorder at any time whether outside my pub or inside my pub. That is my main reason for the argument and that is why I wish for leave to appeal.

JUDGE DENYER: Yes.

[35]MR WILLIAMS: My Lord, there are two points. The first one, and my learned friend will, I think, endorse this view is that there lies no further right to appeal from this decision this being--

JUDGE DENYER:

[36]You are quite right. It can go only go to the House of Lords, can it not?[37]MR WILLIAMS: Yes, that would be the only way.

JUDGE DENYER: I am certainly not giving leave.

[39]MR HOWITT: I knew it was the House of Lords.

JUDGE DENYER: You are quite right.

[41]MR WILLIAMS: The secondary application is one for costs. In handing Mr Howitt and yourself a copy of these costs, those who instruct me wish to make it very clear we do not seek the full amount we seek a contribution and we do so having regard to Mr Howitt's circumstances. We take that fair position at the outset.

JUDGE DENYER: Is the secretary of State applying for costs as well?

[43]MISS BROADFOOT: No, my Lord.

JUDGE DENYER:

[44]I imagine you take the view that this was a not unimportant matter from the point of view of a publican such as yourself. You won in front of the District Judge--[45]MR HOWITT: Yes, I did not receive costs. I applied for costs. I did about 200 hours work. The judge -- I did not appeal against it, although she said I could appeal. I accepted the judge completely. I think it is a rather complicated matter. I am going to abide by your decision today, sir, and I will not allow smoking, but I think it would be an insult to grant costs against me.

JUDGE DENYER: I have the point.

[47]MR HOWITT: I mean it's of huge public interest and the taxpayer, 24 per cent of people who smoke pay these taxes also----

JUDGE DENYER:

[48]Yes. No, I think that there is some public interest. I do not pretend that my judgment will necessarily put an end to it, but there was some public interest in the outcome of this appeal, witness the fact that it has been appealed here and the Secretary of State has felt it necessary to intervene. You did win in front of the District Judge. You have been brought here. You have lost, but in the particular circumstances of this case, because of the point of public interest involved, I shall make no order for costs.[49]MR HOWITT: Thank you very much, sir.

JUDGE DENYER:

[50]I had better just warn you, if you do pursue it further you might just find yourself on the receiving end of a fairly hefty costs liability. Do you follow?[51]MR HOWITT: Yes, thank you very much.

JUDGE DENYER: Thank you for the moderation in which you argued it and thank you both.

Cited in 1 later judgment