Licensing Act 2003 Hearing Regulations - Hearing
Procedure
1.
Introduction
1.1
The Licensing Committee or a Sub-Committee of the Licensing
Committee sitting as a Hearing Panel acts as a Quasi-Judicial body.
This means that it must follow the rules of natural justice by
ensuring that:
(a) applicants and
licensees know in advance and in reasonable detail anything that is
claimed or alleged against them;
(b) all parties are
given a proper opportunity to present their views;
(c) only relevant
matters are considered; and
(d) the decision taken
is reasonable.
1.2
A Hearing Panel will
also have regard to:
(a) the Human
Rights Act 1998;
(b) Guidance
issued under Section 182 of the Licensing Act 2003
(hereinafter called the “2003 Act” in
this Appendix A); and
(c) the
council’s Statement of Licensing Policy under the 2003
Act.
1.3 Where a Hearing Panel
chooses to depart from the guidance and/or the council’s
Statement of Licensing Policy, it must give its reasons for doing
so.
2.
Definitions
2.1 In this document the
following definitions apply:
(a)
“applicant/licensee” means the person who has made an
application for a licence under the 2003 Act or a person who has
served notice of a temporary event in accordance with the 2003 Act
or a person who is the holder of a licence under the 2003
Act;
(b)
“representation” means a submission by a responsible
authority or interested party under the 2003 Act, whether made in
response to a consultation, by application for review or served in
the form of a notice;
(c) “party to a
hearing” means a person to whom notice of the hearing has
been given in accordance with column 4 of Schedule 1 attached or
who is otherwise entitled to speak at a hearing;
(d) “member of the
Licensing Authority” means a Member sitting as a member of
the Licensing Sub-Committee (hereinafter called a Hearing Panel),
or an Officer who has been appointed by the council as a proper
officer of the Licensing Authority, to provide any advice that
Members require to fulfil their functions whether or not it is
asked for on:
- questions of law;
- questions of mixed law and fact;
- matters of practice and procedure;
- the range of options available to the Hearing Panel; - any
relevant decisions of the courts;
- relevant national guidance or local policy;
- other issues relevant to the matter before the Hearing Panel;
- the appropriate decision making structure to be applied in any
case;
- assistance on the formulation of reasons and recording
decisions;
- the questioning of any party to a hearing; or
- assistance to any party to clarify evidence and issues
(e)
“discussion” means examination by argument and
debate
(f) “cross
examination” means the examination of a party or witness with
a view to querying or questioning his or her evidence.
3. Composition of
Licensing Hearing Panels
3.1 The Licensing Hearing
Panel shall consist of three Members. Members of the Panel shall
neither represent nor have a connection with:
(a) any
party to the matter in hand;
(b) the Ward in
which any party resides; or
(c) the
Ward in which any premises concerned are located nor themselves live within the
vicinity of any premises under consideration Hearings
will be held in accordance with
Schedule 1 below which sets out:
|
Column 1
|
Provision under a which a hearing may be
held
|
|
Column 2
|
The period of time within which the hearing must
take place
|
|
Column 3
|
The period of notice that must be given about the
hearing
|
|
Column 4
|
The persons to whom notice of the hearing will be
given
|
|
Column 5
|
The documents that will accompany the notice of the
hearing (if any)
|
|
Column 6
|
The period of time within which a party to a hearing
must confirm whether or not they intend to appear
|
4. Notice of
Hearing
4.1 A notice of hearing shall
be accompanied by the following:
(a) the rights of
a party to a hearing (see paragraph 5 below);
(b) the
consequences of non-attendance;
(c) the procedure
to be followed at the hearing;
(d) any particular
points on which the Licensing Authority will want clarification at
the hearing; and
(e) any other
documents in accordance with Column 5 of Schedule 1.
5. Rights of a Party to
a Hearing
5.1 A party to a
hearing:
(a)
may be
assisted or represented, whether or not that person is legally
qualified;
(b)
is
entitled to give further information in support of his, her or
their application or representation where the Licensing Authority
has given notice that clarification on certain points is
required;
(c)
may
question any other party if given permission to do so by the
Licensing Authority;
(d)
may
address the Licensing Authority;
(e)
must be
aware that, in the event of non-attendance, the hearing may proceed
in his, her or their absence. However, if a party has indicated
that they intend to attend the hearing but fail to do so, the
Licensing Authority may, where it is in the public interest,
adjourn the hearing to a specified date (but see paragraph 6
below). Alternatively, the hearing may be held in that
party’s absence (in which case the Licensing Authority will
consider the application, representation or notice made by the
absent party); and
(f)
will be
advised of the procedure to be followed (see Schedule 2
below).
5.2
The following apply:
(a)
a party
to a hearing must confine his, her or their submission to the
information given in his, her or their application or
representation unless they are asked otherwise by the Licensing
Authority;
(b)
Where a
party who has confirmed that they intend to appear at a hearing is
unable to do so or is unavoidably delayed they must contact the
Licensing Authority to explain the reason for his, her or their
absence;
(c)
each
party to a hearing will be allowed an equal maximum period of time
to exercise the above rights;
(d)
the
maximum period to be allowed will be determined at the commencement
of each hearing; and
(e)
where a
number of interested parties attend a hearing, all of whom wish to
make the same or similar points, they will be invited to appoint a
spokesperson. Other interested parties will then be asked to add
anything that they consider his, her or their spokesperson has
omitted. It is not necessary for each interested party to repeat
the same points and the Chair of the hearing is expected to be firm
on this point.
5.3 Action required by party
to a hearing following receipt of notice of hearing.
5.4 A party to a hearing is
required to confirm to the Licensing Authority within the period
set out in Column 6 of Schedule 1 below:
(a)
whether
or not they intend to attend or be represented;
(b)
(b)
whether they consider the hearing unnecessary; and (c) any request,
in writing, for permission for any other person to attend (as a
witness). Any such request must include the person’s name and
brief description of the point(s) that person may be able make in
order to assist the Licensing Authority at the hearing. Any such
request will be considered at the beginning of the hearing but such
permission shall not be unreasonably withheld.
5.5 The following
apply:
(a)
any such
request will be considered at the commencement of the hearing;
and
(b)
the
submission of the witness must relate to the points contained in
the representation made by the party on whose behalf they are
appearing. Any other comment(s) must and will be
disregarded.
6. Dispensing with a
hearing
6.1 The Licensing Authority may dispense with a hearing if all the
parties to it (other than the Licensing Authority itself) have
given notice in writing that it is unnecessary. If all parties give
such notice, the Licensing Authority, if it agrees, must give
notice to the parties that the hearing has been dispensed with and
determine the application within 10 working days based on the
representations that have been made in writing.
7. Withdrawal of
representation
7.1 A party to a hearing may
withdraw any representation by giving notice no later than 24 hours
prior to the commencement of the hearing or orally at the hearing
itself.
7.2 If all representations are
withdrawn the application will be approved as submitted.
8. Adjournments
and Extensions of time
8.1 The Licensing Authority
may:
(a)
extend
any time limit relating to a hearing set out in Schedule 1 if felt
in the public interest, provided that any reviews can still be
determined within the prescribed time limits and provided that
during the transition period the application is not consequently
deemed grant or deemed refused;
(b)
adjourn
or hold a hearing on additional specified dates where it considers
this to be necessary; or
(c)
adjourn
to enable a site meeting to be held.
8.2 Notice will be given to
all the parties to the hearing stating the period of the extension
or the date of the re-scheduled hearing and the reasons for
it.
8.3 During the transition
period any adjournment or extension of time will not re-schedule
the hearing later than the following:
|
Type of Application
|
Latest time for hearing
|
|
• Conversion of premises licence or club
premises certificate
• Variation of new premises licence or new club
premises certificate
|
Not later than 2 months beginning on the day the
application was received by the Licensing Authority
|
|
Application for a personal licence by the holder of
a Justices’ Licence
|
Not later than 3 months beginning on the day the
application was received by the Licensing Authority
|
9. Hearings in
Public
9.1
Hearings will take place in public, unless the Licensing Authority
excludes the public from any part of a hearing on the grounds that
the public interest in doing so outweighs the public interest in
the hearing (or that part) taking place in public.
9.2 When the public are
excluded from a hearing (or part), any party to the hearing, his,
her or their representative and any person called by them as a
witness may also be excluded.
9.3 The Chair may require any
person attending the hearing who is behaving in a disruptive manner
to leave and may determine whether and with what conditions if any
they may return.
10.
Representations and Supporting Documentation
10.1
Members of the Licensing Authority may ask any question of any
party or other person attending the hearing.
10.2 In considering any
representation made by a party, the Licensing Authority may take
into account supporting documentary or other information produced
by that party either before the hearing or, with the consent of all
the other parties, at the hearing itself.
10.3 If material is to be
introduced at the hearing, the party must make it available for
distribution to the members of the Licensing Authority and the
other parties to the hearing if its submission is
permitted.
10.4 The
Licensing Authority will disregard any information given at a
hearing that is not relevant to the matter under
consideration.
11. Procedure at a
Hearing
11.1 The
hearing will proceed in the following order:
(a) The Chair will
elicit any Declarations of Interests.
(b) The Chair will
introduce members of the Hearing Panel.
(c) The Chair
will ask those present to introduce themselves.
(d) The Chair will
ask all parties to the Hearing whether they are happy to proceed
with their application or representation.
11.2 The
Chair may ask the officer of the Licensing Authority to
report:
(a) any requests from a party to the Hearing for permission for a
witness to appear in support of his, her or their representation.
Any such requests will be determined by the Hearing Panel; and (b)
any documentary or other information that a party to the Hearing
wishes to present. If there is any such material, the Chair will
ask all the other parties to the Hearing whether they consent to it
being presented. If they agree, the material will be distributed.
If not, this material may not be distributed unless the Chair
wishes it to be.
11.3 The Chair
may invite the applicant/licensee or his, her or their
representative to estimate the time required to present his, her or
their case and ask questions of other parties to the hearing. The
Chair will then ask the other parties to the hearing whether they
will require a longer period to present their representation and
question the applicant. The Hearing Panel will determine the
maximum period of time allowed for each party to put his, her or
their case. This decision will be final.
11.4 The Chair
will ask the Officer of the Licensing Authority to summarise the
matter under consideration.
11.5 The
Members of the Hearing Panel, the applicant, and those making
representations may ask questions of the Officer of the Licensing
Authority.
11.6
Starting with the applicant or licensee, each party will exercise
his, her or their rights within the identified maximum time, as
follows:
(a) each
party to present his, her or their case, including responding to any points of
which the Licensing
Authority has previously given notice, and call any approved
witness or
witnesses in support of his, her or their case; and
(b) if given
permission by the Chair, and only through the Chair,
each party may raise questions of
any other party or
witness/witnesses.
11.7 The
applicant/licensee or his, her or their representative will be
asked to sum up his, her or their case.
12.
Determination of Applications
12.1 In the
case of a hearing relating to:
(a)
a
counter notice following police objection to a temporary event
notice; or
(b)
a review
of premises licences following closure order; the Licensing
Authority must make its determination at the conclusion of the
hearing.
12.2 In the
case of any other hearing, the members of the Hearing Panel may
choose to determine the case at the conclusion of the hearing or
after the hearing within five working days.
12.3 If
determining the case at the hearing, it is for the members of the
Hearing Panel to choose whether to retire to consider the case or
discuss the case in front of all parties.
12.4 When
determining a case, either during the hearing or after, and whether
having retired or deliberating in front of the parties, the
following shall apply:
(a) Members of
the Hearing Panel will determine the case, not Officers or any
other parties;
(b) Members of
the Hearing Panel will be advised by a Legal Officer;
(c) a
Democratic Services Officer will be available to make relevant
notes and make a written record of the Panel’s
decision;
(d) if Members
of the Hearing Panel have a question relating to the relevant
legislation or the council’s policies which the Legal Officer
is unable to address, they may seek the advice of an officer of the
council’s Licensing Team; and
(e) if Members
of the Hearing Panel wish to attach conditions to an application
under consideration they may seek the views of any or all of the
parties before determining the case, especially if the details of
the possible condition were not discussed with parties during the
hearing and/or members of the Hearing Panel do not feel they have
as clear a view as possible of the proposed condition’s
efficacy, applicability and/or acceptability to any or all of the
parties.
12.5 Once the
case has been determined, all parties will be advised of the
decision and the reasons for it, together with their right of
appeal. If determined at the hearing, the Legal Advisor to the
Hearing Panel will advise those present of any advice that has been
provided during the determination. If determined after the hearing,
the notification of the outcome shall make reference to any such
legal advice provided.
12.6 A
determination may authorise an officer of the Licensing Authority
to approve an application subject to conditions to be applied in
accordance with the decision made at the hearing.
12.7 Whether
determined at the hearing or after, the applicant shall be informed
of the decision and rights of appeal in writing within five working
days of the hearing.
13. Recording
Proceedings
13.1 A
written record of proceedings will be taken and kept for six years
from the date of the determination or the disposal of any
subsequent appeal, whichever is the later.
14. Irregularities
14.1 Any
irregularity resulting from failure to comply with the Licensing
Act 2003 (Hearings) Regulations 2005 (or any subsequent
Regulations) will not of itself render the proceedings void but, if
the Licensing Authority considers that any person has been
prejudiced as a result of any irregularity, it will take steps to
rectify this before reaching its determination.
14.2
Clerical mistakes in any document recording a determination, or
errors in documentation arising from an accidental slip or
omission, may be corrected by the Licensing Authority.
Please note
that following a review of data
protection issues, some agendas and minutes have been withdrawn
from the website. Any queries should be
addressed to democratic.services@eastherts.gov.uk
These meetings are webcast – details can be
found here.