Update: licensing

Legislation

The Gambling Act 2005 came into force on 1 September 2007. It represented a huge challenge both in scope and complexity. However, the Act seems, apart from the controversy over the 'supercasino', to have passed relatively seamlessly into effect - in stark contrast to the problems that befell the Licensing Act 2003. The Health Act 2006, on the other hand, which from 1 July 2007 banned smoking in public places, including licensed premises in England (a smoking ban was already in force in Wales), has presented significant practical problems as smokers gather outside premises and in public house gardens and car parks for a cigarette.

Sections 53A'“53C of the Licensing Act 2003 (inserted by the Violent Crime Reduction Act 2006) came into force on 1 October 2007 and provide for fasttrack review applications at the request of a chief officer of police, who must certify in writing that in his/her opinion the premises are associated with serious crime and/or serious disorder. There are still no commencement dates for the 2006 Act's other provisions providing for Alcohol Disorder Zones and Drink Banning Orders (a sort of alcohol-related ASBO). The consensus now seems to be that these provisions have fallen out of favour and are unlikely ever to be implemented.

Licensing Act 2003

Experience around the country suggests that the tide may have turned against liberalised availability of alcohol. Historically, alcohol licensing has moved through successive periods of liberalisation and control. Most recently, as the puritanical attitudes of the Victorian period dissolved into the 'never had it so good' permissiveness of the 1960s, a move for liberalisation of licensing controls became evident. The Licensing Act 2003 represented the culmination of this liberalising momentum, promising 'responsible adults increased freedom on how they spend their leisure time'. A central provision was the abandonment of standard permitted hours for the sale of alcohol, offering the possibility of 24-hour availability.

Yet even before the Act came into force in 2005 it was evident that the tide was turning against liberalisation. Concerns over 'binge drinking', public health, drinks promotions and underage drinking had effectively put paid to the emergent laissez faire approach to alcohol control. While there are no reliable statistics, anecdotal evidence suggests that the last year has seen an increase in representations for both new applications and variations together with a rise in the number of review proceedings. The Act has in some ways been turned on its head. For example, applicants for 24-hour licences are being asked by some licensing subcommittees to justify why they want such a licence, with an assumption that it will inevitably attract trouble-makers and problems; rather than the committee considering whether there is any evidence to suggest that such a licence would undermine any of the licensing objectives. The recent decision in Thwaites (see below) may halt this trend as it underlines the need for decisions to be based on evidence in relation to the licensing objectives rather than suppositions on what might happen if a licence is granted/varied.

Underage sales

From 1 October 2007 the minimum age for the purchase of tobacco products was raised to 18, bringing it in line with the provisions relating to alcohol. Underage sales continue to occupy much media, trade and official attention. 'Challenge 21' upped to 'challenge 25' by some retailers has been topped by a national retailer that has announced plans to introduce 'challenge 30'. (This is also the first retailer to have installed so-called 'mosquito' noise devices, audible only to young people to dissuade them from loitering outside their shops.) The home secretary earlier this year promised a raft of new measures including 'a crackdown on underage drinkers consuming alcohol in public' and 'wider use of parenting contracts'; which is interesting as in a report from the Home Office Positive Futures initiative (which targets young people in the most deprived areas) 22 per cent claimed to get alcohol at home from their parents, or other family members, and a small number admitted to stealing from their house without their parents' knowledge.

In the latest test purchase operation (TUSAC 2007) for on-licences of 1,558 test purchases at 484 premises 18 per cent failed; while for off-licences of 7,408 test purchases at 2,199 premises 14 per cent failed. This is a total of 8,966 test purchases at 2,683 premises with an overall 15 per cent failure rate. The government hailed these figures as a success although the number of premises that failed at least one test is 39 per cent (off) and 49 per cent (on). (22 premises sold on three separate occasions.)

Case law

Two recent cases are of particular significance. First, the House of Lords decision in Miss Behavin' Ltd v Belfast City Council [2007] UKHL 19 which concerned an unsuccessful application for a sex establishment licence. There are two aspects to the decision. The first concerns objections received outside the period for lodging objections. The House held that there was no bar on the licensing authority allowing such objections and that the authority had a discretion to consider late objections. However, provided that discretion was properly exercised, the objector could not complain if the authority decided not to take the objection into account.

The second matter considered by their Lordships concerned a human rights argument and, in particular, Article 10 of the Convention (which provides for freedom of expression) and Article 1 of the 1st Protocol of the ECHR (which provides for peaceful enjoyment of property). The House held that the role of the court in human rights cases was different from that in 'ordinary judicial review of administrative actions'. In human rights cases the court was not concerned simply with whether the decision maker took them into account but 'whether the human rights of the claimant have in fact been infringed'.

As mentioned above, some licensing sub-committees and to a lesser extent magistrates' courts at appeals have been willing to base decisions on speculative concerns and fears rather than evidence. This has no doubt been encouraged by paragraph 9.8 of the revised DCMS Guidance published on

28 June 2007 which states: 'There is no requirement for an interested party or responsible authority to produce a recorded history of problems at a premises to support their representations, and in fact this would not be possible for new premises'. However, a decision of the Administrative Court given in May 2008 has underlined the need for licensing decisions to be based on evidence rather than speculation.

Daniel Thwaites Plc (claimant) v Wirral Borough Magistrates' Court (defendant) & Saughall Massie Conservation Society (first interested party) & Wirral MBC (second interested party) [2008] EWHC 838 (Admin) concerned a premises licence for a public house. An application was submitted to vary the hours. The police and local conservation society made representations. The application was modified to a more modest extension of hours. The police withdrew their representations and the variation was granted by the licensing subcommittee. The conservation society appealed successfully to the magistrates' court.

The Administrative Court held that the magistrates' court had failed 'to take proper account of the changed approach to licensing introduced by the Act. Had they had proper regard to the Act and Guidance, they would have approached the matter with a greater reluctance to impose regulation and would have looked for real evidence that it was required in the circumstances of the case. . . they proceeded without proper evidence and gave their own views excessive weight and their resulting decision limited the hours of operation of the premises without it having been established that it was necessary to do so to promote the licensing objectives. In all the circumstances their decision was unlawful and it must be quashed' (para.63).

The court referred to the original Guidance, as this was current at the time of the magistrates' court appeal, and expressed the view that the revised Guidance contained no amendments significant to the matter before it '“ however, it is not clear whether paragraph 9.8 (referred to above) was drawn to the attention of the court and if not one wonders whether this would have had any effect on the decision.

The definition of an 'interested party' and the meaning of 'vicinity in the 2003 Act and Guidance were considered in 4 Wins Leisure Limited v Blackpool Licensing Committee (1) Brook Leisure Blackpool Limited (2) World Wide Clubs (UK)(3) [71] Licensing Review, 18, October 2007.

The court stated that the guidance cannot usurp the clear language of the Act, that 'vicinity' was highly dependant on local knowledge and that the test is not whether a business would be affected but whether the premises were within the vicinity.

Betting Shop Services Ltd v Southend-on-Sea Borough Council [72] Licensing Review, 20, Jan/Feb 2008 concerned an application for a betting premises licence. The authority refused to consider the application as the premises were not fully fitted and furnished for gambling as specified by the guidance at paras.7.55-7.57. The court held that the guidance was wrong and that it was for the court to interpret the meaning of statutory provisions, in this case s 159 of the Gambling Act 2005. A declaration was issued that 'notwithstanding that premises are not yet completed, an application for a premises licence may lawfully be granted as long as the applicant complies with the requirements of section 159 of the Act' (para.29). The Gambling Commission has announced that 'Following the recent Judicial review the Commission intends to review aspects of the guidance to Licensing Authorities' (see further www.gamblingcommission.gov.uk).

Miscellaneous

Appeal costs to the magistrates' courts have been hiked to £400 from 1 October 2007, but for applicants only; for responsible authorities and interested parties the fee is £75. The latter, in the case of residents, further buoyed no doubt by the Guidance for Interested parties: Appealing Licensing Decisions on the DCMS website: 'If you appeal against a licensing authority's decision, and you are unsuccessful, the magistrates' court can award costs against you if it sees fit. This would mean that you would have to pay other parties' legal costs as well as your own. However, the Magistrates Association and the Justices' Clerks Society has advised that awarding costs for a licensing appeal should be an exception and not a rule, and any resident with reasonable grounds for appeal should not be penalised' (emphasis in the original).

The first statistical analysis of the 2003 Act was published in November 2007 (DCMS Statistical Bulletin Alcohol, Entertainment and Late Night Refreshment Licensing England and Wales, April 2006 '“ March 2007). Unfortunately more that 50 licensing authorities failed to submit a return and of those that did most were incomplete; so that that data is, to say the least, incomplete. Nevertheless, the available figures do provide some interesting reading and can be found at www.culture.gov.uk/what_we_do/Alcohol_entertainment under 'facts and figures'. Also available on the DCMS website is Evaluation of the Impact of the Licensing Act 2003 published in March 2008. The report claims that the overall volume of crime and disorder remains stable but notes an increase in early morning alcohol-related violence. It is estimated that £99m per annum has been saved in red tape, that the average closing time across all premises has increased by only 21 minutes, that fewer than 4 per cent (some 5,100) premises have 24-hour licences and that while this includes some 470 pubs, bars and nightclubs 'there is no evidence that more than a handful operate on that basis'.

Concerns over levels of gambling, and in particular problem gambling, have been assuaged somewhat by the findings of the British Gambling Prevalence Survey 2007 which found that participation in gambling fell from 72 per cent in 1999 to 68 per cent in 2007. The Survey also found that there was no apparent increase in problem gambling over the same period. The next survey, due for publication in three years time will be able to assess the effects, if any, of the provisions of the Gambling Act 2005.