THE LAW

Zero for Crockfords

R. A. CLINE

Next week Crockfords will be asking the Court of Appeal to help it get a licence which will enable it to use its premises in London for gaming. Once upon a time it was necessary only to apply to the ap- propriate authority—the relevant Borough Council licensing committee in this case. This was done by making representations before the committee sitting as a kind of court and if necessary calling witnesses, appearing by counsel and so on. Objectors could make counter-representations and call witnesses. Finally the licensing committee decided one way or the other, to grant or refuse a licence.

But in response to the fears of the early 'sixties that London was becoming the centre of a gambling racket Parliament set up the Gaming Board (now presided over, not in- appropriately, by the former head of British Railways). No one can apply to the licens- ing committee unless he has obtained a certificate of consent from the board. So the board has the right to deprive a would- be applicant of his day in court, if it thinks fit. In exercising this right the board can knock the value out of premises which have become a star attraction in the gaming world. It can destroy reputations and im- peril livelihoods. A refusal of consent can mean the sterilisation of the building at least as a gaming house.

All this may raise a cheer from the puri- tans and a passing moan from those who like their little flutter. But it does raise an issue of importance somewhat wider than the mere question whether Crockfords is to continue' or stop. For the nub of Crock- fords' complaint is that the board professed itself dissatisfied with the representation made by Crockfords to the board and asked for further submissions without indicating what was the deficiency to be put right, what charges or complaints the club had to meet or even whether there were any charges or complaints. The club felt itself to be in the dark, shadow-boxing, unable to answer a cue which had not been put against it.

So Crockfords went to the Divisional Court for leave to issue the prerogative writs of eertiorari and mandamus, which When translated means no more than that Crockfords wanted the Lord Chief Justice and his two judges to hold that there was an arguable-zasei for reviewing the Board's. decision and compelling it to justify it. Suspend for the moment your decision as to

whether boards of this sort should or should not be made to explain what they do and whether courts should interfere.

The three judges unanimously threw out Crockfords' application; they took the view that it was unarguable that there should be any such judicial review. Crockfords then went the next day to the Court of Appeal where it fared better. This time another

three judges unanimously held that the matter was arguable and they were prepared

to hear the argument (no wonder the out- come of law-suits can be so unpredictable when there can be conflicting unanimities about what is arguable, let alone which argument is right).

The next stage will be the hearing by the Court of Appeal. Which brings us to our first grouse. Where is the need for 'leave' to be obtained before the 'aggrieved citizen' can be heard by the court in these cases of judicial review of executive deci- sions? ,For you will have grasped that in these applications there are two hearings and therefore two hurdles: the first to get leave to be heard at all, the second to make the complaint. No doubt there was once

good reason for this steeplechase procedure, to keep out frivolous complaints. But there is a greater deterrent against such frivolity, namely an order for costs, which after all frightens off many justified complaints.

The more important issue in this case is whether statutory bodies like the Gaming

Board have any obligation to tell those from whom they are withholding their con- sent what is held against them. In the middle of the nineteenth century an English judge was once asked to stop a district board from ordering a house to be pulled down. No one knew why the order had been made. The judge recalled an earlier judge's words: 'The laws of God and man both give the party an opportunity to make his defence, if he has any. I remember to have heard it observed by a very learned man, upon such an occasion, that even God himself did not pass sentence upon Adam before he was called upon to make his defence. "Adam" (says God) "where art thou?

Hast thou eaten of the.tree whereof I com-

manded thou shouldest not eat?" And the same question was put to Eve also.' No doubt Crockfords will argue that the Gam- ing Board should be given a similar op- portunity to defend itself. It can of course be argued in reply with some force that statutory bodies like the Gaming Board, concerned to stamp out rackets, should not as a matter of principle be required to produce confidential reports by police informers and the like: that secrecy is a necessary aid to the control of gam- bling. So the question for the Court of Appeal is whether the board should as a matter of natural justice be ordered to reveal at least the gist of its objection to Crockfords con- tinuancy or whether, like the frustrated Job.

Crockfords is to be confronted with silence. We have seen over the last decade a proliferation of these statutory boards en- dowed with great and salubrious power. The process is far from ended; whatever the result of the Crockford case, it once again underlines the need for an effective administrative court readily assuming the power to investigate and review the decisions of public bodies. Such courts will not ham- per public administration. On the contrary, by ensuring that it is fairly carried out, they will make executive decisions more acceptable --tor:a sorely -tried public.