LAWS LJ:
INTRODUCTORY
- There are five cases before the court. All involve the construction and application of provisions contained in the Private Security Industry Act 2001 ("the 2001 Act") relating, in particular, to arrangements made for the licensing of door supervisors – commonly known as "bouncers". I will use the more formal term.
- The need for and use of door supervisors at clubs and other premises represents only one sector of the private security industry. In a White Paper published in March 1999 (CM 254) the government issued proposals for the regulation of the industry in England and Wales as a whole. This was a function previously left to local authorities. It was thought, however, that that had led to inconsistent practice, and a conspicuous aim of the White Paper proposals was to raise standards generally, and in particular to exclude criminals from positions of trust which they might abuse. The White Paper was in due course followed by the 2001 Act which received Royal Assent on 11 May 2001. Door supervisors were the first sector in the industry to be subject to licensing pursuant to its provisions. The scheme was progressively brought into force region by region, starting with Hampshire and the Isle of Wight. By April 2005 licences were required nationwide.
- As I shall show in greater detail by reference to the terms of the Act itself, the agency having the responsibility under the 2001 Act to grant or withhold licences for door supervisors is the Security Industry Authority ("the SIA"). The SIA is required to publish the criteria which it proposes to apply in determining licensing matters. Some of the published criteria concern the treatment, for the purpose of licence applications, of criminal offences of which applicants for licences have been convicted. A right of appeal is provided to a magistrates court against a refusal by the SIA to grant a licence, with a further appeal to the Crown Court.
- In two of the cases before us, Stewart and Sansara, the SIA appeals by way of case stated against decisions of Crown Courts allowing appeals by the respective respondents and requiring the SIA to grant door supervisors' licences to them. In a further two, Rahim and Bakr (which were dealt with together in the court below), the appellants appeal by way of case stated against the dismissal by the magistrates' court of their appeals against the SIA's refusal to grant them licences. In the last case, Egenti, the claimant seeks judicial review (with permission granted by Sullivan J) of the magistrates' court dismissal of his appeal. In each case the SIA had refused to grant a licence because on the face of the criteria which the SIA had itself set the applicant was disqualified by virtue of his earlier conviction of a criminal offence falling within a particular category. The overarching question in this litigation is whether, in a case where a licence has been refused for that reason, the SIA (and the magistrates' court and Crown Court on appeal) are entitled or required to look into the merits and so consider the circumstances or gravity of the offence which gave rise to the conviction. Though some are appellants and some respondents, it will be convenient to describe Messrs Stewart, Sansara, Rahim, Bakr and Egenti as the applicants, when it is necessary to refer to them compendiously.
THE 2001 ACT
- I should now describe or set out the relevant provisions of the 2001 Act. Certain amendments have been made, but the unamended text is material for present purposes.
"1(1) There shall be a body corporate to be known as the Security Industry Authority (in this Act referred to as 'the Authority').
(2) The functions of the Authority shall be -
(a) to carry out the functions relating to licensing and approvals that are conferred on it by this Act;
(b) to keep under review generally the provision of security industry services and other services involving the activities of security operatives;
(c) for the purpose of protecting the public, to monitor the activities and effectiveness of persons carrying on businesses providing any such services as are mentioned in paragraph (b);
(d) to ensure the carrying out of such inspections as it considers necessary of the activities and businesses of -
(i) persons engaged in licensable conduct...
(e) to set or approve standards of conduct, training and levels of supervision for adoption by -
(i) those who carry on businesses providing security industry services or other services involving the activities of security operatives; and
(ii) those who are employed for the purposes of such businesses;
...
(3) The Authority may do anything that it considers is calculated to facilitate, or is incidental or conducive to, the carrying out of any of its functions.
..."
By s.3(1) it is a crime "for a person to engage in any licensable conduct except under and in accordance with a licence". Licensable conduct includes acting as a door supervisor. I may go to ss.7 and 8, which are of primary importance given the issues in these cases. S.7 is cross-headed "Licensing criteria".
"7(1) It shall be the duty of the Authority, before granting any licences, to prepare and publish a document setting out -
(a) the criteria which it proposes to apply in determining whether or not to grant a licence; and
(b) the criteria which it proposes to apply in exercising its powers under this Act to revoke or modify a licence.
(2) The Authority may from time to time revise the document for the time being setting out the criteria mentioned in subsection (1)(a) and (b); and, if it does so, it shall publish the revised document.
(3) The criteria set out by the Authority under this section -
(a) shall include such criteria as the Authority considers appropriate for securing that the persons who engage in licensable conduct are fit and proper persons to engage in such conduct;
(b) may include such criteria as the Authority considers appropriate for securing that those persons have the training and skills necessary to engage in the conduct for which they are licensed; and
(c) may also include criteria relating to such other matters as the Authority thinks fit.
(4) In setting out any criteria or revised criteria under this section the Authority may provide for different criteria to apply -
(a) in relation to licences for different descriptions of licensable conduct; and
(b) in relation to the initial grant of a licence and in relation to a further grant to the same licensee for the purpose of renewing an earlier licence.
(5) Criteria or revised criteria set out under this section shall not have effect for the purposes of this Act unless the Secretary of State has approved them.
(6) The publication in accordance with this section of any document setting out any criteria or revised criteria must be in such manner as the Authority considers appropriate for bringing it to the attention of the persons likely to be affected by it.
8(1) The Authority may, on an application made to it, grant to the applicant a licence to engage in any such licensable conduct as may be described in the licence.
...
(3) In determining whether or not to grant a licence the Authority shall apply the criteria for the time being applicable under section 7.
..."
S.8(6) empowers the imposition of conditions on a licence. Next s.11, which is cross-headed "Appeals in licensing matters".
"11(1) Where -
(a) an application for a licence is refused,
(b) a licence is granted subject to conditions imposed under section 8(6), or
(c) a licence is modified or revoked,
the applicant or, as the case may be, the holder of the licence may appeal to the appropriate magistrates' court against the Authority's decision to refuse to grant the licence, to impose those conditions or, as the case may be, to modify or to revoke the licence.
...
(4) Where a magistrates' court makes a decision on an appeal under subsection (1), an appeal to the Crown Court may be brought against that decision either by the Authority or by the person on whose appeal that decision was made.
(5) A court to which an appeal is brought under this section shall determine the appeal in accordance with the criteria for the time being applicable under section 7.
..."
Those citations suffice for the purposes of the case.
THE EUROPEAN CONVENTION ON HUMAN RIGHTS ("ECHR")
- Given certain arguments advanced by Mr de Mello for Mr Rahim and Mr Bakr and by Mr Ley for Mr Egenti (Mr Stewart and Mr Sansara were not represented and did not appear) I should set out part of ECHR Article 6(1), Article 8(1) and the first paragraph of Article 1 of the First Protocol. Article 6(1):
"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law..."
Article 8(1):
"Everyone has the right to respect for his private and family life, his home and his correspondence."
Article 14:
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
Article 1 of the First Protocol:
"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law."
THE CRITERIA
- The SIA criteria relating to door supervisors, published under s.7 of the 2001 Act, were first contained in a booklet which was specific to door supervisors. The criteria have been modified, as permitted by s.7(2). The final version of the booklet specific to door supervisors was published in January 2005. The criteria presently in force ("Get Licensed – Licensing Private Security") were published in September 2005 and cover other regulated activities as well as those of door supervisors. In Stewart and Egenti the January 2005 criteria were applicable, and were considered by the court whose decision is challenged. In Rahim and Bakr it was the September 2005 criteria. In Sansara, it seems that the Crown Court erroneously applied those of January 2005: the September criteria were already in force at the time of the hearing. Thus the proceedings were not conducted on the basis of "the criteria for the time being applicable" as required by s.11(5) of the 2001 Act. However given the nature of the issue we have to decide, such differences as there are between the two sets of criteria are not material. The references and quotations which follow are taken from the September 2005 publication.
- The criteria draw a distinction between front line staff (such as door supervisors) and non-front line staff (largely those acting in a managerial capacity, having no direct responsibility for door supervision). In order to obtain a licence, front line staff must be over 18, must pass an identity and criminal record check, and possess an SIA approved qualification. The SIA may also consider other relevant factors, such as mental health (if the applicant has had to be detained in the five years before making the application), other information offered to the SIA (for example compelling evidence of relevant criminal activity, anti-social behaviour or criminal association), and the applicant's right to remain and work in this country.
- Under a heading "Criminal Record Checks", this passage appears in the published criteria (p. 40):
"We will always carry out a criminal record check on anyone who applies for a licence. If you have a criminal record, it does not necessarily mean that you will not get a licence. However, if you do have any convictions, warnings, cautions or charges awaiting trial for offences we will make our decision according to:
• Whether the offences are included in the list of offences between pages 55-65
• The classification of seriousness of the offences (the list between pages 55-65 classifies offences according to degrees of seriousness)
• How recent the offences were
You will not get a licence unless you have been free of the effects of a conviction, caution or warning for at least two years before your licence application or for at least five years where we consider the offence to be serious (subject to the limited exceptions listed in the section on Cautions and Warnings on page 44). Relevant offences include those involving violence, offensive weapons, drugs, sexual offences, serious criminal damage, theft and dishonesty. We also consider any offences under [the 2001 Act] to be serious.
By 'free of the effects of a conviction, caution or warning' we mean that we will start counting the time elapsed from the end of the caution or warning, or from the end of the sentence or penalty as appropriate - not from the date when you were sentenced or when the offence or offences were committed. One example would be, if you have been convicted of an offence and spent any time in prison, the date for deciding whether the offence is still relevant for licensing purposes is the date the sentence would have ended. Even if you were released early we will still regard the offence as relevant up until the final date when the sentence would have ended."
I should add (as does the text of the criteria) that the SIA is exempt from the provisions of s.4 of the Rehabilitation of Offenders Act 1974, so that spent convictions may be taken into account in dealing with licence applications.
- The offences specified at pp. 55 ff of the criteria are arranged in two lists, List A and List B. In the case of front line staff, both Lists A and B apply; for non-front line staff, only List A applies. If an offence is not in either list it will not be taken into account by the SIA in considering whether or not to grant a licence. The offences are marked with symbols in the lists. A key at page 55 explains that those classified as serious arrestable offences by the Police and Criminal Evidence Act 1984 are indicated by a cross and offences considered by the SIA as serious are marked with a diamond. These two classes of offence attract the requirement that the applicant be "free of the effects" of his conviction for the minimum five year period specified in the passage from the criteria w hich I have set out. Offences considered by the SIA as significant are marked with a star. They attract the two year period.
THE FACTS
STEWART
- On 3 May 2001 Mr Stewart was convicted of obstructing a police officer in the execution of his duty, fined £125 and ordered to pay £40 costs. On 16 November 2004 his application for a door supervisor's licence was received by the SIA, who refused it on 8 February 2005. On 20 April 2005 the Newcastle upon Tyne Justices allowed Mr Stewart's appeal brought pursuant to s.11(1) of the 2001 Act and ordered the SIA to pay £500 costs. The SIA appealed to the Newcastle Crown Court which dismissed the appeal on 15 July 2005. On the SIA's application the Crown Court subsequently stated a case for the opinion of this court.
- The offence of obstructing a police officer in the execution of his duty is marked with a diamond in List A. Accordingly the five year period specified in the criteria applied. It remained current at the time of Mr Stewart's application, the SIA's decision, and the decisions of the magistrates' court and the Crown Court. It is and always has been the SIA's case that in those circumstances it was itself bound to refuse the application by force of s.8(3) of the 2001 Act, and the appeal courts were bound to uphold that decision. In a fully reasoned judgment delivered by Mr Recorder Storey QC the Crown Court held, however, that on appeal it (and, it must follow, the magistrates court before it) enjoyed a discretion to consider the individual merits of the case. The stated case signed by the learned Recorder raises two questions for the opinion of this court:
"(1) whether we as the appellate Court were wrong in law or acting in excess of jurisdiction to hold that we had the discretion to consider the merits of the matter in determining the appeal
(2) whether [the SIA] is under a duty, as set out in the... criteria, to consider the relevance of any offence to an applicant's fitness to hold a door supervisor's licence."
- It is to be noted that the five year period has now expired, so that if the SIA succeeds on this appeal it would be open to Mr Stewart to submit a fresh application which would not be caught by the "free of effects" provision.
SANSARA
- On 29 April 2003 Mr Sansara was convicted of failing to surrender to custody at the appointed time, contrary to s.6 of the Bail Act 1976, and fined £25. His application for a door supervisor's licence was received by the SIA on 14 December 2004. It was refused on 25 January 2005, and the refusal was maintained by the SIA on 11 May 2005 after a review. On 14 September 2005 the Walsall and Aldridge Justices dismissed Mr Sansara's appeal, but refused the SIA's application for costs and recommended that Mr Sansara appeal their decision. He did so and on 18 November 2005 the Wolverhampton Crown Court allowed his appeal. Again the SIA applied to the Crown Court for a case to be stated, and that has been done.
- The offence of failing to surrender to bail is marked with a diamond in List A. Accordingly, just as in Stewart, the SIA's case was that the five year "free of effects" provision applied and Mr Sansara's application was bound to be refused. The magistrates court reluctantly agreed. The Crown Court, presided over by Mrs Recorder Darbyshire, noted that in relation to the facts of the offence Mr Sansara's case was that he had made a mistake about the date he was due at court, and appeared some days late. The Recorder stated (judgment transcript, 3B-C):
"By no stretch of the imagination can an offence for [sic] making a mistake about a court date for which a fine of £25 is imposed be regarded as serious dishonesty.
The fact that such an offence is included in the automatic disqualification for five years is a nonsense."
She proceeded to cite from Lord Greene's judgment in Wednesbury [1948] 1 KB 223, and said (3G-H):
"Given that the criteria seeks [sic] to protect the public from people who have convictions for, inter alia, serious dishonest[y], we consider that it is wholly unreasonable for [the SIA] to refuse to grant the appellant a licence to work as a doorman based on the conviction he has."
- The stated case poses one question for the opinion of this court, effectively in the same terms as the first question in Stewart:
"The question for the opinion of the High Court is whether we as the appellate court were wrong in law or in excess of jurisdiction to hold that we had the discretion to consider the merits of this application in determining the appeal."
RAHIM AND BAKR
- It is convenient to take these appellants together because their cases were heard together in the magistrates' court. On 5 March 2004 Mr Rahim was convicted of failing to surrender to custody at the appointed time contrary to s.6 of the Bail Act 1976). He was sentenced for this (and other offences which we do not have to consider: the Bail Act offence engages the criteria) to a Community Punishment Order of 200 hours. His application for a door supervisor's licence was received by the SIA on 25 October 2005. It was refused by notice to Mr Rahim on 19 December 2005, and on 17 January 2006 maintained after a review which he had requested. His appeal (and that of Mr Bakr) was dismissed in the Birmingham magistrates' court by District Judge Chinery on 4 April 2006.
- On 26 February 2004 Mr Bakr was convicted of using a false instrument contrary to s.3 of the Forgery and Counterfeiting Act 1981, and fined. His application for a door supervisor's licence was received by the SIA on 3 October 2005 and refused by notice on 12 December 2005. The refusal was maintained on review on 24 January 2006. As I have indicated his appeal went forward to the magistrates court in tandem with that of Mr Rahim and was dismissed. At the appellants' request the district judge stated a case for the opinion of this court.
- As I have already said the offence of failing to surrender to bail, of which Mr Rahim was convicted, is marked with a diamond in List A. So is Mr Bakr's offence, using a false instrument. The district judge upheld the contention of the SIA that during the currency of the stipulated five year period the licence application in each case had to be refused. He posed these questions in the stated case:
"(a) Do I have, under s.11(5) of [the 2001 Act], jurisdiction to determine whether the denial of the licence in this case to the Appellants constitutes a breach of Article 6, 8, 1 First Protocol and 14 of the European Convention on Human Rights and if I do, is the denial of the licence to each Appellant incompatible with these Articles?
(b) Do I have, under s.11(5) of the Act, jurisdiction to determine whether the Appellants should have a licence to be door supervisors if they are fit and proper persons to hold a licence, apart from their convictions?
(c) Are the Appellants entitled to a licence on the ground that the Appellant Rahim's conviction does not affect his honesty and the Appellant Bakr's conviction was before he was subsequently authorised to act as a door supervisor by the City Council [this latter point, relating to Mr Bakr, must be a reference to the fact that he remained accredited as a door supervisor by the Birmingham City Council, under the old regime, until a date after his conviction]?
(d) Is the decision of the SIA unlawful?"
EGENTI
- On 31 March 2000 Mr Egenti was convicted of using a false instrument contrary to s.3 of the Forgery and Counterfeiting Act 1981 and sentenced to six months imprisonment suspended for two years. On 5 July 2002 he was convicted of an offence of acquiring the proceeds of crime contrary to s.93B(1) Criminal Justice Act 1988 and sentenced to 6 months imprisonment. On 20 June 2003 he was again convicted, this time of obtaining property by deception and handling stolen goods (ss.15 and 22 of the Theft Act 1968), and sentenced to a Community Rehabilitation Order of two years duration. Mr Egenti's application for a door supervisor's licence was received by the SIA on 8 April 2005 and refused by notice given on 25 May 2005. His appeal to the Highgate Justices was dismissed on 5 September 2005.
- As I have already said, using a false instrument is marked with a diamond in List A. So are acquiring the proceeds of crime, obtaining property by deception and handling. Mr Egenti's judicial review application raises the same essential question as do the appeals by way of case stated: does the law require that this licensing regime should operate by strict application of the stated criteria relating to previous criminal convictions, with no scope for any discretionary judgment (by the SIA or the courts on appeal) based on the individual merits of the case?
THE LEGAL ISSUES OUTLINED
- Opening the SIA's appeals in Stewart and Sansara, Mr Perry QC posed six interlocking questions. All of them touch what I have called the overarching issue in the case, namely whether the SIA (and the magistrates court and Crown Court on appeal) are entitled or required to look into the underlying merits and so consider the circumstances or gravity of the criminal offence which gave rise to the refusal of a licence pursuant to the criteria. Mr Perry's questions engage ECHR Articles 6, 8 and 14 and Article 1 of the First Protocol, which (as I have foreshadowed) are variously relied on by counsel for the applicants. I will not, with respect, replicate Mr Perry's questions. I propose to confront the case by what I think is a somewhat simpler route. As it seems to me there are two areas of enquiry which have to be addressed in dealing with the overarching issue. First, upon the application of conventional canons of construction to the 2001 Act and the criteria, was the SIA obliged to refuse licences to the applicants? Secondly, if so, are there any legal considerations (whether or not grounded in the ECHR) which displace that result? For clarity's sake I should explain that I will treat the issue of the criteria's vires, which of course may be classified as a question of construction of the 2001 Act, as falling within the second of these areas of enquiry rather than the first.
CONSTRUCTION OF THE 2001 ACT AND THE CRITERIA
- The key provision of the 2001 Act is s.8(3) which I will repeat for convenience:
"In determining whether or not to grant a licence the Authority shall apply the criteria for the time being applicable under section 7."
S.11(5), dealing with the courts' appeal jurisdiction, is effectively in the same terms. These provisions plainly confer no discretion on the SIA or the courts. On the face of the statute, they have to apply whichever (if any) of the published criteria covers the case in hand. The Act does not authorise any disapplication of the criteria, or qualification of their effect, by reference to the applicant's underlying merits or individual circumstances. The bite of s.8(3) cannot be read as if it were in some way softened by the use of the phrase "the criteria which it [sc. the SIA] proposes to apply" in s.7(1)(a) and (b): those provisions confer on the SIA the anterior duty to publish what will become the statutory criteria, in which context the verb "propose" is plainly apt. Nor is s.8(3) blunted by the reference in s.7(3)(a) to "such criteria as the Authority considers appropriate for securing that the persons who engage in licensable conduct are fit and proper persons": that provision is concerned solely with the choice of criteria, not their application.
- Mr Ley for Mr Egenti tried another tack. He submitted that the clue to the proper interpretation of the relevant provisions in the 2001 Act lies in the meaning of the term "criteria" itself. He refers (skeleton argument paragraph 11) to the Concise Oxford Dictionary's definition of "criterion", which includes "principle"; and one of the meanings of "principle" is "general law as guide to action". Accordingly, submits Mr Ley, "criteria" in the 2001 Act means no more than "guidelines". At once the door is open for consideration of the case's individual circumstances, and a discretionary decision arrived at on the merits.
- The Concise Oxford Dictionary attributes a number of further meanings to "criterion". One is "a rule to be judged by". This, in my judgment, is the meaning which it bears in the 2001 Act. At the very least it is an available meaning; and in my judgment it is to be preferred to other possible senses of the term. Since by force of ss.8(3) and 11(5) the result of a licence application is driven, and driven only, by the application of the published criteria, the term "criteria" should not be given a meaning which invites consideration of matters beyond the criteria themselves. To do so, as Mr Ley's argument would, cuts across the grain of the Act.
- The argument is bad for another reason. The fact is that in selecting the criteria under s.7 the SIA has not chosen to deploy "guidelines". It has made rules. Thus even if (contrary to my preferred view) it had been open to the SIA to treat the requirement to select criteria as allowing the choice of guidelines and no more, it has not done so.
- Mr de Mello for Messrs Rahim and Bakr directed his submissions more towards the appeal provisions in s.11 than those dealing directly with the functions of the SIA. His skeleton argument is extremely prolix, but (leaving aside his reliance on the ECHR, with which I will deal separately) the essence of the submission is that a reading of s.11 which confines the appeal courts, in cases such as these, to an adjudication of the question whether the criteria are met on their face renders the right of appeal nugatory (see, for example, skeleton argument paragraph 99). The criteria dictate to the court how it should decide the appeal (paragraph 100); if that is permitted, the citizen's constitutional right of access to the courts is unacceptably restricted (paragraphs 93, 97). Accordingly a different construction of s.11 of the 2001 Act must be adopted, such that the right of appeal under s.11(1) is not absolutely limited by the terms of s.11(5) (paragraph 91).
- Mr de Mello's argument confuses two very different states of affairs. The first is where a court already possesses a jurisdiction whose scope is then illegitimately curtailed by some measure or decision. The second is where statute simply confers a limited jurisdiction on a court. S.11 of the 2001 Act belongs in this second category. However Mr de Mello would have us accept that the case belongs in the first. His submission is that the construction of s.11(5) which is put against him would amount to an unjustified – indeed, unconstitutional – curtailment of a wider jurisdiction which the s.11 courts enjoy. But there is no trace of any source for such a wider jurisdiction. It is certainly not to be found in s.11(1): s.11(5) is the operative, or executive, provision relating to the scope of the courts' function. There is nothing constitutionally offensive in the conferment by statute of a limited appellate jurisdiction on a court in a specific context. It is in any event to be noted (I need not take time with the detail) that there will be cases in which a s.11 appeal will engage other matters than, or as well as, the fulfilment or otherwise of the published criteria.
- I conclude that applying no more than conventional canons of construction to the material provisions of the 2001 Act, the SIA and the s.11 appellate courts were obliged to apply the criteria and strictly decide the applicants' licence applications, and the appeals, accordingly. As for the construction of the criteria themselves, as I have already said the SIA, in formulating them, has elaborated rules and not guidelines. They are sharp-edged. They contain no "give", which might allow for merits judgments and discretionary decisions.
- It follows that if the matter ended there the decisions of the SIA in all these cases were not only justifiable, but the only decisions that could lawfully be arrived at. Accordingly if the applicants are to succeed they must prosper at the second line of enquiry I have described: are there any legal considerations which displace the result arrived at by reference to the ordinary canons of construction? Potentially there are two broad issues here. The first is whether the criteria, or any of them, are ultra vires the 2001 Act. The second is whether the application of the criteria, or any of them, offends any provision of the ECHR. In the latter case, by force of the Human Rights Act 1998 (whose terms I need not cite) this court would of course be obliged to remedy the defect. Conceptually, these two issues overlap. If the court concluded that application of the criteria would involve a violation of the ECHR, the remedy would be to hold that the 2001 Act, read with the assistance of s.3 of the 1998 Act, did not authorise the promulgation of such criteria; and that, of course, would be a judgment as to the scope of the vires given by s.7 of the Act. (The position would be different if the 2001 Act on its true construction and notwithstanding s.3 only authorised the promulgation of such criteria; in that case the debate would be directed to the court's jurisdiction to grant a declaration of incompatibility under s.4 of the 1998 Act. But there is no suggestion that we are in that territory.)
THE CRITERIA – ULTRA VIRES?
- Before addressing this part of the case directly it is convenient to notice a slippage between two very distinct propositions which is to be found in the learned Recorder's judgment in Sansara. The first proposition is that one of the "serious offence" criteria is unreasonable (because it includes a failure to answer bail arising from a genuine mistake). The second is that it was "wholly unreasonable" for the SIA to refuse a licence based on a conviction for such an offence (see judgment transcript 3B, G, set out above). The first proposition would go to the vires of the criterion. The second would raise the question whether the SIA, notwithstanding the terms of the criterion and of the Act, possessed a discretion to grant the application because the offence was so venial. It is as well to have the distinction between these two clear. If the offence, for all its veniality, is included in the criteria intra vires, then on the construction of the 2001 Act which I favour (which allows no discretion to the SIA or the statutory appeal courts) and subject to the impact of the ECHR, there can be no separate case to the effect that the SIA unreasonably refused Mr Sansara a licence.
Nicholds & ors v SIA [2006] EWHC Admin 1792
- The vires, more broadly the legality, of the criteria have in fact already been considered in no little depth by Mr Kenneth Parker QC sitting as a deputy High Court Judge in the Administrative Court in Nicholds & ors v SIA (judgment delivered on 19 July 2006). Each of the claimants in that case was refused a licence because he was not "free of the effects" of relevant convictions for the specified period. The claimants sought judicial review of the criteria, asserting that the process of automatic refusal for failure to meet the criteria prevented the SIA from considering in their individual cases whether they were fit and proper persons to hold a licence. There were three grounds of challenge. The first was that application of the criteria produced violations of ECHR Article 1 Protocol 1. The learned deputy judge dealt with that last, and as I have indicated I too will address the ECHR points separately.
- The second ground in Nicholds, which the deputy judge addressed first, was that it cannot have been the intention of Parliament to allow the SIA to promulgate any criteria whose application would constitute an automatic prohibition or rule of disbarment. It was submitted that any such rule, even one which prescribed automatic disqualification for a person convicted of murder, was "outwith the statutory purpose and scope of s.7 of the Act" (judgment, paragraph 43). The applicant's individual circumstances always had to be considered. The learned deputy judge rejected this contention out of hand, and in my view he was right to do so. In paragraph 45 he stated, plainly correctly, that "Parliament attached the greatest importance to ensuring, through the Act and the regulation by the authority, that criminality would be driven out of door supervision". It my judgment it is simply inescapable, given the terms and context of the 2001 Act, that the legislative intention was to authorise, or at least to allow for, hard-edged rules which would automatically disqualify applicants for licences who had been convicted of and sentenced for defined offences, within a defined timescale before the application was made. This conclusion is I think supported by certain practical considerations much pressed by Mr Perry and which I briefly address below.
- The third ground of challenge before the deputy judge was, as he observed, closely related to the second. It was that the criteria, since they constituted absolute rules, amounted to an unlawful fetter on the SIA's discretionary power of decision. Reliance was placed on Lord Reid's well known statement in British Oxygen [1971] AC 610, 625: "The general rule is that anyone who has to exercise a statutory discretion must not 'shut his ears to an application'... What the authority must not do is to refuse to listen at all". This argument was misconceived and the deputy judge was plainly right (paragraphs 53 ff) to reject it. Once the criteria were set, the SIA did not have to "exercise a statutory discretion": in applying the criteria, it had no discretion. British Oxygen is not authority for the proposition that Parliament may not authorise the promulgation of an automatic prohibition or rule of disbarment. Such a proposition would be an affront to Parliament's legislative supremacy. And on the true construction of s.7 of the 2001 Act Parliament has in fact authorised just such prohibitions. On this part of the case it is useful to compare the decision of the Court of Appeal in Secretary of State for Defence v Elias [2006] EWCA Civ 1293, in which it was held that the formulation of "bright line criteria" for a compensation scheme did not amount to an unlawful fetter of common law prerogative powers (see paragraphs. 182-195 of the judgment, which with respect I need not cite). That case was decided on appeal after judgment was delivered in Nicholds; the deputy judge referred (paragraph 53) to the first instance decision which was later upheld.
- On the question of the criteria's vires the learned deputy judge in Nicholds touched upon a possible argument which, however, had not been advanced before him. If it is right it would represent an important qualification to the deputy judge's conclusion on the second issue before him, and my own view, in agreement with him, that the legislative intention was to authorise hard-edged rules leading to automatic disqualifications where the rule is not met. This argument has now been taken up by Mr de Mello, and it is convenient to deal with it at this stage. This is what the deputy judge said:
"49. I have taken pains to emphasise the precise nature of the claimants' case. At the hearing of this application I expressly put to Mr Cragg that what I described as a more nuanced and less extreme attack on the Published Criteria might at first sight appear more credible. Such an attack would be more specifically directed at the particular offences listed in the Published Criteria. Consider, for example, Category – Firearms, which includes the offence under section 2 of the Firearms Act 1968 of possessing a shotgun without a shotgun certificate. A person might have had a certificate for a long period and be of extremely good character both in relation to firearms and generally. On one occasion, perhaps distracted by a family bereavement or the like, he fails to renew the licence, is convicted under section 2 and receives a relatively light punishment. Such a person is automatically debarred for at least 5 years from applying for a licence to be a door supervisor. I can envisage that a claimant in that position might more credibly argue that to treat the simple conviction for that specific offence, without any examination of the circumstances and seriousness of the conviction, and without regard to other matters touching upon his suitability for holding a licence, would tend to defeat the purpose of the Act on the ground that it would automatically rule out persons who, on an objective and fully explored basis, were not in truth 'serious criminals' (cf. R v Nottingham CC ex p. Howitt [1999] COD 530).
50. My example is purely hypothetical, and I express no view as to the final merit of any such argument. However, I must make clear, particularly if this application were to be considered by a higher Court, that Mr Cragg did not advance any such argument and expressly disavowed, notwithstanding my reference to it, any intention to do so. His attack was a root-and-branch one of the nature that I have described: no offence was so serious that the Authority could treat it as an absolute bar to obtaining a licence."
The New Argument
- The deputy judge's example there given may be thought to be close to the actual facts in Sansara, where (on the applicant's case) Mr Sansara failed to answer his bail purely by reason of a mistake. Mr de Mello, as I have said, adopts the argument put to counsel by the deputy judge in Nicholds but eschewed by him. But it seems to me that he misrepresents the deputy judge, no doubt unintentionally, by implicitly ascribing to him the view that the argument was correct, whereas the judge was at pains to express no view on its merits. At paragraph 101 of his skeleton Mr de Mello says:
"The Magistrates' Court is not bound by the decision of the Authority in circumstances where for example the claimant's conviction (e.g. Rahim) was not in truth a serious criminal conviction or where the minor/conviction did not disable him from undertaking the doorman's job on grounds of probity or competence: Nicholds at [49]."
- Whether or not this is a fair treatment of the deputy judge's reasoning, I must deal with how Mr de Mello puts the matter in what follows (in the same paragraph):
"In these circumstances, any automatic bar based solely on the conviction, however minor or without regard to extenuating circumstances, would be ultra-vires the purpose of the Act and clearly liable to be impugned on grounds of unreasonableness... or on grounds that the criteria runs counter to the policy and object of the Act..."
- It is instructive to consider what the application of this further argument would actually entail. The proposition which the argument goes to support is presumably that the inclusion in the criteria of any offence which might be committed in circumstances consistent with the offender's being a perfectly fit and proper person to hold a licence should be excluded from the list. But that would apply to a large number of offences, including offences of homicide, where there may be very pressing mitigating circumstances exonerating the offender at least of any kind of blame that might be relevant to his fitness as a door supervisor. This approach could only be worked at the price of excluding from the list a whole series of offences some of whose practical instances ought certainly to disqualify the offender from holding a licence. But that would plainly frustrate the purposes of the 2001 Act.
- Any other approach would inevitably require the SIA, and the statutory appeal courts, to examine the details of the particular case in order to ascertain whether in the circumstances the offender should, for the purpose of his licence application, be excused the consequences of his offence. But I have already held (paragraph 33) that given the terms and context of the 2001 Act, the legislative intention was plainly to authorise hard-edged rules which would automatically disqualify applicants for licences who had been convicted of and sentenced for defined offences. I said that this conclusion is supported by certain practical considerations much pressed by Mr Perry. I will describe these now.
Practicalities
- The SIA is not itself in a position to investigate the facts of or circumstances surrounding a conviction, particularly where that conviction occurred some years before any enquiry. It lacks the power to obtain such information by compulsory means. It is in any event far from clear how the SIA might obtain reliable information. The case papers may no longer exist, and even if they do their retrieval from archives is likely to be a time-consuming and possibly costly exercise which would require the assistance of other agencies such as the police and the Crown Prosecution Service. Moreover the papers may often not give a true picture of the case presented or accepted by a convicted defendant. The SIA would have to evaluate the case in light of submissions and representations about the offender's merits and demerits. There are no transcripts of proceedings in the magistrates' court, which deal with the overwhelming majority of criminal cases. And the process of evaluation by the SIA would be likely to generate a plethora of appeals in which the statutory appeal courts would be invited to examine, sometimes minutely, the circumstances of the offence. Such a state of affairs would tend to divert the SIA from its primary licensing function. It might undermine public confidence in the operation of the licensing scheme.
- I do not regard this scenario as unrealistic or exaggerated. It broadly represents what would happen if the law were to require the licensing scheme of the 2001 Act to be operated by reference to the individual merits of individual cases. No doubt the SIA (given sufficient resources – itself no small consideration) could be made to function along the lines I have contemplated. But the general impracticality of its doing so is so great, and its effects in terms of time, cost and uncertainty so potentially inimical to the efficient working of the scheme, as to constitute a further very substantial basis for holding that the 2001 Act contemplates and empowers the setting of criteria, as has in fact been done, whose application involves an automatic prohibition or rule of disbarment.
- Accordingly in my judgment the criteria are intra vires the 2001 Act, unless that conclusion is contradicted by application of the Convention rights pursuant to the Human Rights Act 1998. This is the final issue arising at my second line of enquiry.
THE CRITERIA – REPUGNANT TO THE CONVENTION RIGHTS?
Article 1 of the First Protocol
- In Nicholds the learned deputy judge considered at length whether persons who had permission to work as door supervisors under the regime in place before the 2001 Act, but who under the new system were disqualified by application of the criteria, were thereby unlawfully deprived of their possessions within the meaning of Article 1 of the First Protocol (to which it is convenient to refer, as the deputy judge did, as "A1P1"). In the present case some other Convention points are taken, but it is convenient first to deal with A1P1.
- All five applicants had enjoyed permissions to work as door supervisors under the previous regime administered by local authorities. The deputy judge in Nicholds reviewed a number of decided cases material to the question whether such permissions constituted possessions within the meaning of A1P1. At paragraph 83 he concluded, "despite my reservations", that they did. In his skeleton submissions for the SIA (paragraph 6.55) Mr Perry did not unequivocally submit that this conclusion was erroneous. However he drew attention to the recent decision of the Court of Appeal in Malik [2007] EWCA Civ 265 which might well be thought to cast doubt on the matter. The question was whether a doctor's inclusion on the list of authorised practitioners was a "possession", so that his unlawful suspension violated A1P1. At first instance Collins J held that it was. His judgment was before the deputy judge in Nicholds, who with due respect expressed (paragraph 81) some doubt about it. On 28 March 2007, after the judgment in Nicholds, Collins J's decision was overturned in the Court of Appeal. It was held that where the possessory right relied on for the purposes of A1P1 was (as in that case) to an intangible entitlement conferred by a licence or other form of permission to the grantee to follow an activity to his advantage, some additional factor, such as the existence of some present economic value, was necessary if the entitlement was to amount to a "possession".
- In light of the decision of the Court of Appeal in Malik I consider that the difficulties facing the contention that the applicants' earlier permissions to work as door supervisors constituted possessions for the purpose of A1P1 are mountainous. But even if they could be overcome I am clear that the regime of the 2001 Act and the published criteria is well justified by reference to the second sentence of A1P1, which I repeat for convenience:
"... No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law."
- In my judgment the criteria elaborated under s.7 of the 2001 Act are proportionate to the aim in hand, namely seeing to it "that criminality would be driven out of door supervision" (in the words of the deputy judge in Nicholds) given the interests of members of the public resorting to clubs and bars on the one hand, and the interests of previous licence-holders applying afresh to the SIA under the new regime on the other. The contrary argument must be to the effect that the regime would only be proportionate if it allowed for consideration of each applicant's individual merits. For reasons I have given in dealing with the vires of the criteria at common law that would be hopelessly impractical. In Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816, in which their Lordships' House had to consider whether s.127(3) of the Consumer Credit Act 1974 was compatible with the rights guaranteed by A1P1. Lord Nicholls of Birkenhead said this:
"69. There must... be a reasonable relationship of proportionality between the means employed and the aim sought to be achieved. The means chosen to cure the social mischief must be appropriate and not disproportionate in its adverse impact...
70. In approaching this issue, as noted in R v Johnstone [2003] UKHL 28 para 51, courts should have in mind that theirs is a reviewing role. Parliament is charged with the primary responsibility for deciding whether the means chosen to deal with a social problem are both necessary and appropriate. Assessment of the advantages and disadvantages of the various legislative alternatives is primarily a matter for Parliament. The possible existence of alternative solutions does not in itself render the contested legislation unjustified: see the Rent Act case of Mellacher v Austria (1989) 12 EHRR 391, 411, para 53. The court will reach a different conclusion from the legislature only when it is apparent that the legislature has attached insufficient importance to a person's Convention right. The readiness of a court to depart from the views of the legislature depends upon the circumstances, one of which is the subject matter of the legislation. The more the legislation concerns matters of broad social policy, the less ready will be a court to intervene."
- I consider that the application of these considerations in the present case confirms my conclusion.
Article 6
- Mr de Mello's argument was much taken up with ECHR Article 6. His submissions in reliance on it were closely related to his case that as a matter of common law a reading of s.11 which confines the appeal courts to an adjudication of the question whether the criteria are met on their face renders the right of appeal nugatory and unlawfully restricts the citizen's constitutional right of access to the courts. I rejected this submission at paragraph 28 which I will not repeat. His argument might no doubt be re-cast as asserting that the criteria, which in truth give rise to the "restriction" objected to, are ultra vires the 2001 Act. I have also rejected this proposition: paragraphs 41 and 42. Does Article 6 add anything?
- There is no question of the statutory appeal courts lacking independence or impartiality. Mr Ley's submission to the contrary (skeleton argument paragraph 36) is with respect hopeless. The argument on Article 6 must therefore be to the effect that the statutory arrangements fail to provide a forum for "the determination of [applicants'] civil rights". But such rights are only those which applicants might acquire under the 2001 Act. S.11 gives the courts full authority to decide whether such rights in any particular case are enjoyed or not. The courts can and will deal with any alleged factual mistakes by the SIA. There is no shortfall between the reach of applicants' rights and the jurisdiction of the courts. The real complaint here is that applicants should have larger rights; but there is no basis on which we should so hold, and in any case it is nothing to do with ECHR Article 6.
- On this part of the case Mr de Mello cited a number of authorities. None was in point.
Article 8
- It is well established that Article 8 confers no right to work in a particular profession: Thlimennos v Greece (2001) 31 EHRR 15, paragraph 41. But in my view Article 8 is not in any event engaged. Our attention was drawn to Countryside Alliance [2006] 3 WLR 1017 which was concerned with the prohibitions contained in the Hunting Act 2004. An argument was advanced under Article 8 to the effect that individuals in various circumstances would lose their livelihood, and more broadly their way of life, in consequence of the ban. Sir Anthony Clarke MR giving the judgment of the court said this:
"103 However much one may sympathise with the plight of these and other witnesses, we do not consider that article 8 is engaged even in these cases. The last 50 years have seen the destruction, for various reasons, of many people's way of life in this country, often by deliberate decisions by the Government. The collapse of the heavy manufacturing and the coal-mining industries are just two cases in point. What tipped the scales in the Sidabras case 42 EHRR 104 was that the applicants were prohibited by a blanket ban on employment from a wide swathe of alternative employments. In Niemetz's case 16 EHRR 97, once the applicants' law office was treated as their home, the state's intrusion undoubtedly showed want of respect for their privacy. In the sexual orientation cases the state shows disrespect for an applicant's right to conduct personal relationships in private in the way he/she chooses. No such special factors apply to the present case. Even if the feared consequences do arise... they will not be caused by any lack of respect in article 8 terms for the claimants' private or family life or for their homes. We do not consider that any question of respect for their private or family life or their homes comes into play."
- On the admittedly very different facts of the present cases I cannot see how the applicants might properly obtain a more favourable result. But even if Article 8 is engaged, I am clear, for reasons I have given in dealing with A1P1, that the measures contained in the 2001 Act and the published criteria constitute a proportionate response to the need to regulate the private security industry in the public interest.
Article 14
- No separate points arise, as for his part Mr de Mello effectively acknowledged.
CONCLUSION
- For the reasons I have given I would resolve all the matters before us in favour of the SIA. At the end of his skeleton Mr Perry listed the answers which he said the court should give to the questions posed in the stated cases if his submissions prevailed; and he submitted that the judicial review claim in Egenti should be dismissed. Those proposed orders are likely correct, but if my Lord agrees with the substance of this judgment counsel will no doubt provide draft agreed orders for the court to make.
MR JUSTICE MITTING:
- I agree, for the reasons given by Laws LJ.
1.1. MR MUMAN: My Lords, I appear for the appellants, Rahim and Bakr. Can I ask my Lords for the necessary order for detailed assessment?
1.2. LORD JUSTICE LAWS: You want a detailed assessment for the purposes of the LSC?
1.3. MR MUMAN: My Lord, yes.
1.4. LORD JUSTICE LAWS: Yes.
1.5. MR MUMAN: My Lord, the second application I have, although it is unclear whether this application should be made to this court or to the Court of Appeal directly, is an application for leave to appeal. My Lords will have seen, I hope, summary grounds of appeal prepared by Mr de Mello.
1.6. LORD JUSTICE LAWS: Yes, we have seen that this morning.
1.7. MR MUMAN: I am grateful. I propose to say no more about it and to rely on that document.
1.8. LORD JUSTICE LAWS: Thank you. Who goes next?
1.9. MS SHEIKH: My Lord, I appear on behalf of Egenti. My Lord, mine is a similar type of application. Would my Lord allow legal aid taxation?
1.10. LORD JUSTICE LAWS: On the same basis, you being publicly funded?
1.11. MS SHEIKH: My Lord, yes.
1.12. LORD JUSTICE LAWS: In that case you may also have the requisite detailed assessment.
1.13. MS SHEIKH: I am grateful, My Lord. Further, I am asked if my Lord would grant leave for this particular case of Egenti.
1.14. LORD JUSTICE LAWS: We will deal with the leave applications compendiously. What else?
1.15. MS SHEIKH: My Lord, I have no further application.
1.16. LORD JUSTICE LAWS: That is all you have to say?
1.17. MS SHEIKH: Yes, my Lord.
1.18. LORD JUSTICE LAWS: Thank you.
1.19. MR STOTT: My Lord, I represent the Security Industry Authority. In terms of any order for costs, that does not concern the Authority. But in terms of permission to appeal, the authority would certainly suggest in relation to Rahim and Bakr that this court does not have the power to grant permission to appeal because it is itself an appeal, and under the rules permission can only be given by the Court of Appeal itself. With regard to Egenti, the situation is slightly different because that is a judicial review.
1.20. LORD JUSTICE LAWS: That is an originating application, yes. Thank you. I think that is right procedurally. I think that is right, is it not, Mr Muman?
1.21. MR MUMAN: My Lord, I have to accept that the Civil Procedure Rules seem to indicate that that is the right approach.
1.22. LORD JUSTICE LAWS: We will not grant leave to appeal in the case of Egenti. It is open to Mr Egenti, and in the circumstances also Messrs Rahim and Bakr, to re-apply to the Court of Appeal directly.
1.23. Thank you very much. We are obliged to counsel.
