Update: licensing

It has been another busy year for licensing practitioners. The Licensing Act 2003 has continued to generate issues of interpretation, particularly in respect of responsibility for sales of alcohol to those underage; the Department of Culture, Media and Sport's (DCMS's) guidance has been updated and another criminal justice statute, the Violent Crime Reduction Act 2006, passed into law. Preparation for implementation of the Gambling Act 2005 also has gathered pace. (See (2007) 151 SJ 629-630, 18.05.07), and for an excellent practitioners' guide see Gambling for Local Authorities (2007) published by the Institute of Licensing.) The Health Act received the Royal Assent on 19 July 2006 and will ban smoking in public places including licensed premises in England from 1 July 2006 (see (2007) 151 SJ 728-729, 08.06.07). A major concern for licensed premises beyond the ban itself isthe possibility of increased noise and nuisance generated by smokers congregating outside the premises to smoke.

Licensing Act 2003

The Act came into force in October 2005. Its objectives were to update and simplify the law, increase consumer choice, offer increased protection for local residents and provide 'a key plank of the government's drive to cut down on crime and anti-social behaviour'. Opinion is still divided on whether all or any of these objectives have been achieved and we still await an authoritative appraisal of the Act. Licensing statistics, published tri-annually, are promised for later this year and, despite some lurid press reports of binge drinking and alcohol-related arrests, violence and A&E admissions, the available research suggests that the Act has had little effect on alcohol-related crime and disorder.

Amended guidance

An amended version of the DCMS guidance issued under s 182 of the 2003 Act was approved by Parliament and published on 22 June 2006. While there are some 60 amendments most are concerned with clarity and detail rather than substance. However, the amended guidance does deal with one issue that raised serious problems for operators. This was the view taken by some police forces on interpretation of s 19(3) of the Act which deals with supervision and authorisation of alcohol sales. Some forces had taken the view that a personal licence holder should be present on the premise at all times when alcohol was sold and threatened to close premises if a personal licence holder was not present. The 'unequivocal view' of the DCMS, that this was 'the wrong interpretation of section 19(3)', is expanded in paragraph 7.67A of the amended guidance. Starting from the position that 'authorisation does not imply direct supervision of each sale by a personal licence holder' the guidance goes on to suggest ways in which authorisation may be given and is essential reading.

Also of importance is paragraph 10.4A which deals with who can be a respondent to an appeal and makes clear that a respondent local authority 'may call as witnesses interested parties who made representations against the application, if it chooses to do so'.

Revised guidance

A full revision of the DCMS guidance was published in January 2007 together with a consultation paper. The consultation period ended on 11 April but it is expected to be some months before the revised guidance is published. Matters addressed include definitions of 'in the vicinity' and 'incidental music', cumulative impact policies, model or pool conditions, nuisance and disorder outside premises, the role of councilors in the licensing process, the role of designated premises supervisors, longer hours, evidence and representations.

Liability for underage sales

The vexed question of who can be prosecuted for underage sales of alcohol under s 146 the 2003 Act still awaits clarification in the higher courts. That the actual physical seller can be liable is not in doubt but what of the premises licence holder, the designated premises supervisor and a personal licence holder where they did not physical sell the alcohol?

In 2006 a district judge in the Magistrates' Court at York gave an indication that a premises licence holder could not be liable under the Act and the prosecution was withdrawn. At about the same time another district judge in the Dyfed Powys Magistrates' Court held that a premises licence holder could be liable, but found that a good due diligence defence had been made out and acquitted the defendant.

At the same hearing the district judge held that a designated premises supervisor or personal licence holder could not be held liable if they did not physically make the sale. This was supported when in 2007 a prosecution against a designated premises supervisor was withdrawn from hearing before a district judge in Barnsley on the basis of LACORS' advice to a trading standards authority in another area which 'doubted' that a designated premises supervisor could be liable. A number of such prosecutions are pending and the decision of a district judge at Hertford Magistrates' Court is awaited.

Test purchase operation

The latest government enforcement campaign, Tackling Underage Sales of Alcohol, commenced on 4 May 2007 and runs for 10 weeks, It is a focussed campaign with each police force area to target up to 20 'problem premises'; although there is no clear definition of this term. Each of these premises will be tested three times and should any of these tests result in an illegal sale the number of tests will be increased to a maximum total of five. Three consecutive test refusals mean the premises will not be targeted again, but three illegal sales may lead to proceedings under s 147A of the Violent Crime Reduction Act 2006.

Violent Crime Reduction Act 2006

Four of the Act's provisions are of particular interest to licensing practitioners. As yet only one is in force but it is a Draconian measure.

The new offence of 'persistently selling alcohol to children', inserted into the 2003 Act as s 147A, provides that where an underage sale of alcohol is made from the same premises three times or more in a three month period a 'responsible person' (the premises licence holder or premises user under a temporary event notice) commits an offence. The section is not retrospective, applying only to sales made after the date it came into force, 6 April 2007.

Its sting lies in the fact that there is no defence of due diligence available and that the prosecution needs only to prove that three underage sales took place within a three month period.

The Act mentions fixed penalty notices, cautions and convictions as evidence of underage sales, but from the wording of the section it seems that evidence of the mere fact of the sales without the need of a fixed penalty, caution or conviction will suffice. So that all the prosecution will be required to do is to produce adequate evidence of the purchasers' ages and the fact of the purchases. The only defence is to show that the person making the sale had reasonable grounds for believing that the purchaser was 18 years or over (see further s 147A(2)).

The maximum penalty is a fine of £10,000 and suspension of the premises licence for up to three months. Section 169A provides an alternative to prosecution and allows the police to offer the responsible person the option of accepting a 'closure notice' prohibiting the sale of alcohol for up to 48 hours rather than be prosecuted under s 147A.

It should be noted that 'closure notice' is rather misleading as the premises do not have to close or cease any activities other than the sale of alcohol. (It should also be distinguished from the numerous other closure orders now available under ss 160 and 161 of the 2003 Act, s 19 Criminal Justice and Police Act 2001 and s 40 and Part 1, s 1 Anti-Social Behaviour Act 2003.)

Alcohol disorder zones

The Act also introduces Alcohol disorder zones (ADZ). Where a local authority is satisfied that there has been alcohol-related nuisance, annoyance or disorder in an area and that this is likely to reoccur the area may be designated an ADZ. Once so designated, holders of premises licences and registered clubs within the ADZ will be required to make a monthly payment to the local authority. Early indications are that the proposed procedure for establishing an ADZ will be such as to dissuade most applications.

Another initiative under the Act is the Drinking Banning Order, a sort of alcohol-related ASBO, which imposes a prohibition (of between two months and two years) on a person to protect others 'from criminal or disorderly conduct by the subject while he is under the influence of alcohol'. It is expected, when introduced, to prohibit entry to premises with a premises licence or club premises certificate.

Finally, the Act provides for summary review of a premises licence. New ss 53A, 53B and 53C are inserted into the 2003 Act which provide for fast track review applications at the request of a chief officer of police, who must certify in writing that in his opinion the premises are associated with serious crime and/or serious disorder. There are as yet no commencement dates for ADZs, summary review procedure or Drink Banning Orders.

Bradford, Crawley and Cambridge

There have been three recent cases on costs in licensing appeals. All considered the principles laid down in City of Bradford Metropolitan District Council v Booth [2000] 164 JP 485. The first, Crawley Borough Council v Attenborough [2006] EWHC 1278 was decided eight days before R (on application of Cambridge City Council) v Alex Nestling Limited [2006] EWHC 1374 (Admin) - in which Mr Justice Toulson quashed the award of costs against the respondent, holding that 'the fact that the local athority has acted reasonably and in good faith in the discharge of its public function is plainly a most important factor' (para 11). The Crawley case was not cited to the court. In Crawley Lord Justice Scott Baker noted that in licensing appeals 'the justices have a very wide discretion in what costs order they seek fit to make'(para 12) and rejected the proposal that before ordering the local authority to pay all of the appellant's costs it was necessary to make 'a finding that the local authority had behaved unreasonably' (para 13) but 'if the magistrates had all material matters in mind and it was within the ambit of their discretion to make the order' (para 15) - which would include the principles in the Bradford case - that order would not be interfered with. Both the Crawley and Cambridge cases support the principle in Bradford that costs do not necessarily follow the event in licensing appeals but came to different decisions.

Uttlesford District Council

The third, Uttlesford District Council v English Heritage [2007] EWCH 816 (Admin), considered the Bradford, Crawley and Cambridge cases. Pitchford J stressed that Lord Bingham's guidance in Bradford was to draw attention to the public role of the authority as a factor which would need to be weighed in the balance when considering the issue of costs. The facts of each case were to be looked at individually. It was interesting that in the instant case it was the conduct of the authority after the original hearing that weighed in favour of English Heritage's application for their costs. As Pitchford J put it '[the justices] were plainly concerned that a fully contested hearing was unnecessary. It had been made necessary by the refusal of the district council to engage in useful negotiation on the main issue which was resolved in favour of English Heritage' (para 17).

Planning and licensing issues

R (on the application of Blackwood) v Birmingham Magistrates (1) Birmingham City Council (2) Mitchell & Butlers Leisure Retail Ltd (interested party) (2006) [66] LR 27 contains a very helpful consideration of the relationship between planning and licensing issues, while in Belfast City Council v Miss Behavin' [2007] UKHL 19 the question of objections received outside the specified 28-day period was considered. As Lord Hoffman put it: 'If [the objector] does not comply with the deadline, he cannot complain that the council did not take his objection into account. But paragraph 10(15) does not prohibit the council from taking all relevant matters into account, whether they have been communicated by objectors or others, early or late, or in any other way' (para 8). Finally, Sardar & Others v Watford Borough Council (2006) [66] LR 37 a taxi licensing case, provides a useful reminder on the requirement for a licensing authority properly to consult before deciding on a policy change.