Licensing Act 2003

Principles and Procedures

Malcolm Radcliffe

Licensing Authority

Split System

• Personal Licence

• Premises Licence

Licensing Objectives

• Public safety

• Prevention of Crime and Disorder

• Prevention of Public Nuisance

• Protection of Children from harm

• Public Health (not yet)

Premises Licence

Licensable Activities

• Sale or supply of alcohol

• Provision of regulated entertainment

• Provision of late night refreshment

How Do You Apply?

Key Parts

• The fee

• Operating schedule

• Plan

• Consent of DPS

Application Process

• Advertise – on site and newspapers

Responsible Authorities• New kids on the block – Health Authority /

Licensing Authority• All assess applications• Make relevant representations• Once granted can also request review

Personal Licence

• Application and renewal

• Eligible to apply if:

– 18 or over

– Accredited licensing qualifications “Level 2 Award for Personal Licence Holders”

– No forfeiture of personal licence in past 5 years

– Declaration of convictions

Objections to Grant

• Police – relevant or foreign offences

• No objection must grant

• Objection Notice – hearing

• Police recommend refusal – Licensing Authority

• Grant – written statement of reason

• Right of Appeal

Designated Premises Supervisor

• Individual• Day to day control• Readily identifiable• Must hold personal licence• No DPS – No alcohol sales (how many closed

premises? – briefly!)• Supply of alcohol is prohibited at a time when

there is no Designated Premises Supervisor

Review

• What is a Review?• Who can call for a Review?

– Responsible Authorities (inc Lic Authority)– Other persons– (no vicinity tests no longer just “interested

parties”)• Application• Public Notice• Hearing

Powers Available at Review

• Modify conditions

• Exclude licensable activity

• Remove DPS

• Suspend Licence

• Revocation

Temporary Event Notice

Why needed?How to Apply• 2 copies to Licensing Authority• 1 copy to Police• 1 copy to Environmental Health OfficerDetail :

– Activities– Date– Duration– Time– Maximum Number– 10 working days or 5 working days (late TEN)

Objections – Temporary Event Notice

Police and EHO – 3 working days to object if would undermine a licensing objective

• Hearing unless parties agree• Conditions can be added from if premises already

hold licence or client certificate

But need to be conditions that are consistent withthe event

Temporary Event Notice

• Standard notice period – Hearing

• Late Notice – power of veto for Police and EHO

• If objection given to Late Notice – cancelled forthwith (no right of appeal)

• Veto – should only be used if real risk to licensing objectives if event goes ahead, no adequate safeguards / compromise available.

Recent Changes to Licensing Act 2003

• Late Night Levy – for operators of late night premises

• Early Morning Restriction Orders – allow Licensing Authorities to limit terminal hour in certain areas

• Likely to be implemented in October 2012– Will your Authority?

• Response to Government consultation awaited but strongly opposed by trade.

Recent Changes to Licensing Act 2003

• Police Reform and Social Responsibility Act 2011 – Already in force– Responsible Authority now includes Licensing

Authority and Health Bodies– Licensing Authority – Judge and Jury –

Revised guidance 9.13-9.19 not expected to act on behalf of others who could object themselves. BUT if not acted Licensing Authority may choose to act if “relevant grounds”.

Responsible Authorities

• What is a “relevant ground” – Guidance unhelpful time and appeal will tell.

• How will Licensing Authority raise a review?

• Concerns of other Responsible Authorities

• Prosecutor appointed from dept “ring-fenced” from decision making – solely charged with collating evidence and presenting objection

• Do you have the manpower?

Live Music Act 2012

Lisa Gilligan

Live Music Act

• History• Final Lords stage Jan 2012• Royal Ascent 8th March 2012• Commencement date and statutory guidance expected in

October 2012

• Reaction + VE• BBPA• UK Music• Association of Licences Multiple Retailers• Local Government Association• Residents Association

Live Music Act 2012

Four Sections:

• Licence Review for Live Music

• Removal of “entertainment facilities”

• Exemptions

• Commencement and extent (England and Wales)

Live Music Act 2012

Existing S.177

• Not “fit for purpose”

• Disapplies certain music and dancing conditions

• Rarely ever used

Live Music Act 2012

Section 1(1)

• Retains status quo for performance of dance under S.177

• Lap dancing

Live Music Act 2012

Section 177A• Disapplies live music related conditions IF:Qualifying Criteria:• “on sales” must be permitted• Open for consumption of alcohol on the premises• Live music takes place between 08:00 – 23:00• Unamplified live must OR• Amplified – audience no more than 200

Live Music Act 2012

Entertainment Facilities

• Section 2 removes requirement to licence entertainment facilities

• Stages, microphones etc

• Forms/Licences will be amended

Live Music Act 2012

Section 3 – New Exemptions

• Morris dancing with amplified or unamplified music

• New Schedule 12A – live amplified music

• Paragraph 12B – live music in workplace e.g. factories, schools and hospitals

Live Music Act 2012

New Exemptions

• New Schedule 1 paragraph 12C provides “universal” exemption for unamplified music between 08:00 and 23:00

• Protection for residents if there is a licence or certificate in place

• Becomes licensable again after review

Deregulation of Regulated Entertainment

Proposals to deregulate all Regulated Entertainment except:

• Boxing and wrestling

• Adult entertainment

• Entertainment with audiences over 5,000

• Consultation published 16 September 2011

• Response deadline 3 December 2011

• Awaiting Government response

Deregulation of Regulated Entertainment

Reaction1400 responses to consultation – Did you?Survey – Environmental Health News 70% felt

complaints more likelyLicence Authority – Police - Largely unfavourable• Associate of Chief Police Offices – 500 limit – why

– TENS?• Unlikely in proposed form

Alternative Enforcement Routes to Control Noise

• Noise Act 1996

• Anti-social Behaviour Act 2003

• Environmental Protection Act 1990

• Review of Premises Licence S. 52 Licensing Act 2003

• Closure Order S. 161 Licensing Act 2003

Striking a Balance

Between Regulation and Enforcement

Malcolm Radcliffe

Striking a Balance – Regulation & Enforcement

• Cumulative Impact Policies– Why have them– How do they work– When can they work

• Stepped Approach & EnforcementLets talk!• Assessing enforcement options

– S.160/S.161 reviews – prosecution options

Cumulative Impact Policies

• Also known as– Saturation Policies– Cumulative Impact Areas– Special Policies

• “Cumulative Impact” is not mentioned specifically in the Licensing Act 2003, However S.182 Guidance states the issue of the cumulative impact of licences premises is a ‘proper matter’ for the LA to consider in its licensing policy

Cumulative Impact Policies• If the concentration/density of licensed premises in one area is

causing problems with nuisance or disorder, then a CIP will be an invaluable tool to help dictate the nature of the environment.

• Policy/Community safety partnership EHO must provide evidence that cumulative impact is a local nuisance

Q. Is this ever over-ruled?Key – Presumption of grant of a licence becomes presumption ofrefusal(if representation is made against the application)

Applicant must show in operating schedule that they will not cause anegative cumulative impact.

Cumulative Impact Policies

• CIP not absolute / different types of premises and exceptional circumstances must be considered.

• E.g. All seated restaurant with waiter/waitress service.• All applications carefully scrutinised

– Club certificates– Variations– Late night refreshments

• Refusal – Committee must show that the grant of the application would undermine licensing objectives

• Would conditions be ineffective?• Off licences often excluded but sea change• Should ensure specifically mentioned, if to be included.• Brighton & Hove – robust and withstood many challenges

Cumulative Impact Policies

“Used correctly, cumulative impact policies can be an effective tool to ensure the licensing objectives are promoted and the town/city centre is a safe environment for everyone.”

Jean Irving – Force Licensing & Public Safety Manager, Sussex Police

Stepped Approach to Enforcement

Premises come to Police/EHO/Licensing Officer attention

Information meeting / Call – any remedial action agreed / PACE Interviews

BUT ISSUES CONTINUE…

Formal meeting e.g. Police, DPS, Premises Licence Holder

Step by Step Approach to Enforcement

How do you do it?

If after second or third meeting no improvement:

• Review Application

• Costly time and money for all parties

• Try to avoid

Enforcement Tools – S.160

S.160 Order of closure of premises in an areaexperiencing disorder• Pre-emptive• Any number of premises can be included• Superintendent attends Court• Magistrates make order if satisfied need to

prevent disorder• Premises re-open after Order expires

Enforcement Tools – S.161

S.161 Closure Order for Specific Premises

• Re active

• Senior Police Officer makes order if:

– He/she reasonably believes there is or likely to be disorder on, or in the vicinity of and related to, the premises and their closure is necessary in the interests of public safety

Enforcement Tools – S.162

S.162 Extension of closure orders

Same level of concern as when S161 imposed.

• Unstoppable chain of events – Court - Review

Enforcement Tools – Options

Prosecution v Review

(or both)

Key Question:

What end result is required?

How do you decide?

Prosecution

• Lengthy process

• Higher level of evidence

• Fine or imprisonment

• Query – does anything really change at the premises?

Review

• Quicker process

• Balance of probabilities

• Revocation / Suspension

• Licensing activities removed

• Conditions added

• Hours amended

• DPS removed

Advantages for:

Enforcer – changes can be made

Operator – can always appeal

Case Law Update

Lisa Gilligan

Case Law Update

• S.19 Criminal Justice and Police Act 2001 predates Licensing Act 2003

• Central to this Case

• Action of West Yorkshire Police used S.19 to Police carried out a series of five enforcement visits to Bank, Wakefield in 2011

• Multi-agency and others accompanies by Home Office or directly as a result of training given by Home Office officials

Home Office Guidance issues in 2010

“Practical Guide for Preventing and Dealing with Alcohol Related Problems : What You Need To Know (Third Edition)”

Q. What is the effect of a closure notice

A. As soon as the closure notice has been issued all licensable activity must cease immediately (i.e. no sales of alcohol, no regulated entertainment)

Q. What can I do if the premises continue to sell alcohol after I have issued it with a S.19 closure notice?

A. Anyone who sells alcohol after a closure notice has been issued and is in effect can be arrested or summoned for the criminal offence under S.136 of unlicensed activity.

Relying on this guidance Police served S.19 Closure Notices on each of the 5 occasions seeking immediately closure of the premises to close on pain of arrest of DPS.

Bar closed every time – considerable loss of profit.

Conditions on licence in relation to CCTV, Door Supervisors, Building Control and Dancing alleged to have been breached.

Judicial review claim brought against Police and Home Office.

Claiming guidance in Police action in reliance was wrong in law.

Enforced closure and threat of arrest amounted to an unlawful interference with the licence.

Mr Justice Edwards-Stuart ruled claimant entitled to have

recorded in a court order that the Guidance was unlawful.

The service of a Closure Notice pursuant to S.19 CJA 2001

does not:

a) Require the premises to close or cease selling alcohol immediately; or

b) Entitle the police to require it to do; or

c) Entitle the police to arrest a person on the sole ground of non-compliance with the Notice.

The Order was sealed by Court on 13 March 2012

Police and Home Office ordered to pay claimant costs for damages for loss of profit (£15,000).

Home Office Guidance removed

Appeals, Evidence & Costs

V2 – Birch House Business Centre v Denbighshire

December 2010

V2 – Nightclub source of concern for Police for 15 years – under different ownership

Premises changed hands – changes in Police force at same time and Police commenced against the premises

Applications for review.

1st – Resulted in conditions (Oct 2009)2nd – Resulted in revocation

Premises appealed and continued trading

Fight in premises in 2010. Police applied for a summery review – resulted in suspension then revocation

Appeal listed for three days.

Police disclosed records on first and second day after months of requests from Appellants and two court directions.

On third day – Council conceded the appeal.

Police statistics - revealed very week case

- decision to revoke unfounded

Costs allowed to claimant of £24,000

Cashmere Nightclub – Berwick Upon TweedMarch 2011 Licensing Sub-Committee allowed an application to vary the premises licence.

Application to extend has was for alcohol to 4am, Friday Saturday and Sunday of a Bank Holiday.

Police opposed variation – appealed to Magistrates Court.

Licensees Costs of £43,000 awarded.

Interim Steps

Chief Constable of Cheshire v Gary Oates19 December 2011

(DJ in Magistrates – so arguable precedent value)

Nightclub in Runcorn, Cheshire

-Incident in August 2011- Police applied for summary review- Borough Council suspended licence as an interim step pending full review.- Further hearing – suspension confirmed to revisit interim steps- Final review hearing – suspension again confirmed and series of conditions added.

Licensee wanted to appeal against conditions and

suspension imposed at review hearing

Q.Did interim steps of suspension last until conclusion of the Appeal?

DCMS guidance on Expedited / Summary Reviews 2006 stated that:

“interim steps do continue until an appeal is disposed of.”

This was a commonly held view.

Licensee took legal advice to contrary

- Philip Kolvin argued point

- Police argued suspension contemplated by interim steps and confirmed at full review hearing should last to end of appeal proceedings, otherwise entire purpose of the summary review would be lost.

DJ focused on wording of section of the statute“interim steps pending review”

S.53(c) Violent Crime Reduction Act 2006

Took view interim steps untended to be short lived and emergency interim measures.

She was invited by Philip Kolvin and did construe it to give benefit of the doubt to the Licensee.

Appeal triggered whole set of proceedings comprised in March 2012 with agreed conditions.

Widespread view – decision is not universally accepted – will have to be confirmed or overruled in the High Court.