Licensing Hearings - in person or remote?

Richard Taylor, 24th May, 2021

Head of Licensing, Richard Taylor, looks at the benefits and the downsides of remote hearings brought upon by the COVID pandemic.

Over the last year those of us who deal with licensing hearings have become accustomed to doing these on Zoom or on Teams. There are advantages with doing hearings in this way – there is no travel time, you wait to be called on in the comfort of your own home or office but these advantages do not outweigh the disadvantages. For me, remote hearings only work when the application is procedural or uncontested.

The nuances of hearings are lost when that hearing is held remotely. In a Zoom or Teams hearing, you cannot judge the mood of the committee, you cannot work out what the members are interested in and bored by, whether you are pushing at an open door or whether that door has closed, been locked and bolted and the only keyholder has gone on holiday. Worse still when questioning is allowed, you do not have the opportunity to look an objector in the eye. I remember one occasion when I had a police officer refuse to turn his camera on!

Hearings online are entirely formulaic. As an advocate, you simply give a pre-prepared presentation which has little or no opportunity to evolve as you judge how it is being received.

I was delighted therefore to read that the High Court had determined that the legislation providing for remote local authority meetings had expired (on 7th May) and that we would be returning to “in person” hearings.

This followed the dismissal of an application made to the High Court by Hertfordshire County Council, Lawyers in Local Government and the Association of Democratic Services Officers to permit the continuation of remote local authority meetings beyond the expiry date of 6th May specified in the temporary coronavirus act regulations. The court found that the Local Government Act 1972 required that meetings are held in “a place” and that place was not in the ether – it must be in a geographic location.

So far so good for me and my desire to get back on the road in pursuit of the best results for my clients. However, the Licensing Act 2003 (Hearings) Regulations 2005 do not require meetings to be in a “place” and it is argued by Philip Kolvin QC, for whom I have the utmost respect, that the licensing hearings have always been permitted to be held remotely and the Hertfordshire judgment does not change this.

The position now appears to be that licensing hearings may be held either in person or online. Since I started writing this, I have received notification of two hearings – one on Zoom and the other in person. Let’s hope that we see more of the latter as we return to normal.

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