The court hear an appeal to quarter sessions against a licensing decision taken by a local authority. The application was rejected by the local authority against whose decision an appeal lay to the Quarter Sessions. The Recorder allowed the appeal and the City Corporation appealed to the Court of Appeal
Held: (Majority) Where an appellate court or tribunal has to reach its own decision, after hearing evidence, it does not, in general, simply start afresh and disregard the decision under appeal.
A public authority may set general policy governing its approach so long as its practice admits of exceptions and it does not suit its ears to claims that grounds for an exception exist in a particular case.
Lord Denning (dissenting) considered that the local authority was entitled to its opinion that it was socially undesirable to have such arcades in Norwich and that the recorder was wrong to substitute his view for those of the elected body responsible for making such decisions.
Edmund Davies LJ, at page 633, quoted Lord Denning in the course of argument as summarising the issue in this way:
‘Is the hearing to be treated as a new trial to be determined on evidence de novo, without being influenced by what the local authority has done; or is the hearing to be treated as an appeal proper, in which the local authority’s decision is to be regarded as of considerable weight, and is not to be reversed unless their decision is shown to be wrong?’
Edmund Davies LJ considered that this was a false antithesis. From the reasons which he gave for preferring an intermediate position, he must have understood the second of Lord Denning’s alternatives (‘an appeal proper’) as confined to deciding whether the local authority’s decision was wrong in law on the material before it. He went on to say, at page 636:
‘The provision for an appeal to quarter sessions seems to me largely, if not entirely, ‘illusory’ if the contention of the appellant council is right. If it is, I am at a loss to follow how the recorder set about discharging his appellate functions. Lacking all information as to what had happened before the local authority, save the bare knowledge that they had refused the application and their written grounds for refusal, he would be powerless, as I think, to make any effective examination of the validity of those reasons.’
Edmund Davies LJ expressed his conclusion as follows:
‘ . . I hold that the proceedings before this recorder were by way of a complete rehearing.
But, contrary to what has been contended, this conclusion does not involve that the views earlier formed by the local authority have to be entirely disregarded by quarter sessions. It is true that in Godfrey v Bournemouth Corporation [1969] 1 WLR 47, after observing that an appeal to quarter sessions under schedule 6 to this same Act was by way of a complete rehearing, Lord Parker CJ said, at p 52, ‘the discretion is a discretion which the recorder in the present case had to arrive at himself uninfluenced by what the local authority had done’. But with respect, I do not accept this. It went much too far, it was in direct conflict with the view which Lord Parker had earlier expressed in R v Essex Quarter Sessions, ex parte Thomas [1966] 1 WLR 359-363, it was contrary to the approach adopted both by the recorder and by Lord Parker CJ himself in the instant case, and it was, with deference, an uncalled-for observation. Here again, Stepney Borough Council v Joffe [1949] 1 KB 599 establishes what I regard as the proper approach, for, having made the point that there was in that case an unrestricted appeal, Lord Goddard CJ continued at pp 602, 603:
‘That does not mean to say that the court of appeal, in this case the metropolitan magistrate, ought not to pay great attention to the fact that the duly constituted and elected local authority have come to an opinion on the matter, and ought not lightly, of course, to reverse their opinion. It is constantly said (although I am not sure that it always sufficiently remembered) that the function of a court of appeal is to exercise its powers when it is satisfied that the judgment below is wrong, not merely because it is not satisfied that the judgment was right.’
Phillimore LJ’s judgment was to similar effect.
Judges:
Lord Denning MR, Edmund Davies and Phillimore LJJ
Citations:
[1971] 2 QB 614
Statutes:
Betting, Gaming and Lotteries Act 1963
Jurisdiction:
England and Wales
Cited by:
Cited – Hesham Ali (Iraq) v Secretary of State for The Home Department SC 16-Nov-2016
The appellant, an Iraqi national had arrived in 2000 as a child, and stayed unlawfully after failure of his asylum claim. He was convicted twice of drugs offences. On release he was considered a low risk of re-offending. He had been in a serious . .
Lists of cited by and citing cases may be incomplete.
Licensing, Local Government
Updated: 16 August 2022; Ref: scu.631411
