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
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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
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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
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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 Officer
Detail :
– 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 with
the 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
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History
Final Lords stage Jan 2012
Royal Ascent 8th March 2012
Commencement date and statutory guidance expected in
October 2012
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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
Reaction
1400 responses to consultation – Did you?
Survey – Environmental Health News 70% felt
complaints more likely
Licence Authority – Police - Largely unfavourable
• Associate of Chief Police Offices – 500 limit – why
– TENS?
• Unlikely in proposed form
Alternative Enforcement Routes to
Control Noise
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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 & Enforcement
Lets 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 of
refusal
(if representation is made against the application)
Applicant must show in operating schedule that they will not cause a
negative 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 area
experiencing 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
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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.
A.
What is the effect of a closure notice
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 Tweed
March 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 Oates
19 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.