Update: licensing

While there appears to be no plans for the long overdue update of taxi licensing, the Department for Transport published a consultation exercise in May 2009 on a draft revised version of the 'Best Practice Guidance for taxi and private hire licensing'. The existing guidance, published in 2006, remains largely unaltered but the draft contains new sections on vulnerable and disabled passengers and on stretch limousines. The closing date for responses is 28 July 2009.

In May 2009, the Home Office published 'Safe. Sensible. Social. Selling Alcohol Responsibly: A Consultation on the New Code of Practice for Alcohol Retailers'. Proposals include additional mandatory conditions for premises licences, a requirement to display alcohol unit content and health-related information, discretionary local licence conditions and supporting statutory guidance.

A maximum of nine mandatory conditions include banning 'irresponsible alcohol promotions', requiring that free tap water is available for customers, and that the smallest standard measures are made available to stop the automatic selling of doubles or large glasses of wine. Discretionary local conditions would include Challenge 21 (although it may be amended to Challenge 25), restrictions on bulk discounting of alcohol in shops and supermarkets and restricted use of glasses for serving drinks. The closing date for submissions is 5 August 2009.

The Culture, Media and Sport Committee report, 'The Licensing Act 2003 (HC 492)' (14 May 2009), examined the operation of the Act which it considered broadly a success but too bureaucratic and costly, particularly for non-commercial groups and organisers of temporary events.

Twenty-six recommendations were made, mostly to simplify and in some cases make the Act cheaper to operate. For example, more user friendly application forms, a national database for personal licences and reduced costs for Temporary Event Notices and some small organisations. The government's response (14 July 2009), 'accepts or partially accepts the majority of the recommendations made' (see further www.culture.gov.uk/images/publications/433147_Cm_7684.pdf).

The Gambling Commission published a number of documents; most importantly the third edition of its 'Guidance to Licensing Authorities' in May 2009. Other publications include revised guidance on gambling in alcohol licensed premises and 'key characteristics for bingo'. All can be accessed on the commission's website.

Regulations under the Licensing Act 2003 (with accompanying guidance) which introduce a new procedure for minor variations and allow community premises to sell alcohol without the necessity for a designated premises supervisor were laid before Parliament on 8 July 2009. The regulations come into force on 29 July and allow minor variations to be made without the need to embark on a full variation application.

The guidance envisages minor variations falling into four categories: minor changes to structural layout; small adjustments to licensing hours; removal of out-of-date, irrelevant or unenforceable conditions/addition of volunteered conditions; and addition of certain licensable activities. The overarching test is whether the proposed variation will adversely impact on any of the licensing objectives.

Underage sales

Prosecutions and review hearings brought in respect of underage sales of alcohol put at risk both personal and premises licences as well as bringing checkout and bar staff, in many cases for the first time, into the criminal justice system. Measures such as Challenge 21 have had the effect of reducing underage sales but concern over a possible increase of 'proxy sales' (over 18s purchasing alcohol for those under 18) has emerged.

A study commissioned by LBRO (Local Better Regulation Office) 'Protecting Young People from Alcohol Related Harm' published in April 2009 surveys preventative initiatives and notes that: 'The survey amongst licensees demonstrates an overwhelming desire by the majority of licensees to comply with the Licensing Act 2003 in a co-ordinated approach in which everyone is working together to prevent underage access to alcohol and alcohol-related crime and disorder' (p.110). The study makes interesting reading and recognises constructive approaches taken by many authorities rather than simply relying on test purchases, prosecutions and reviews.

Underage sales of alcohol have reduced dramatically over the last few years but two recent 'test purchase' operations suggest unacceptably high underage access to gambling facilities. Figures from the Gambling Commission (June 2009) show that of 100 betting shops visited, 98 allowed a 17-year-old 'mystery shopper' to enter and place bets at the counter. Similar results followed an operation by Blackpool trading standards (April 2009) where 29 of 31 arcades allowed 15-year-old volunteers to play machines with a minimum age requirement of 18.

The Gambling Commission intends to mount further mystery shopping exercises and 'will not hesitate to take regulatory action where necessary' (press release, 11 May 2009). No doubt local trading standards departments will also wish to commence investigatory procedures. Gambling operators are sensibly starting to adopt a similar approach to the alcohol trade by introducing the Challenge 25 initiative and other measures such as improved staff training.

Out of area working

R (on the application of Newcastle City Council) v Berwick-upon-Tweed Borough Council [76] LLR 33 was brought by Newcastle City Council as many of its private hire licences had been surrendered by operators who then became licensed in Berwick-upon-Tweed but continued to work in the Newcastle area (Berwick operated a more liberal licensing regime than Newcastle and levied lower fees). The concern was that regulation would not be as effective for these 'remote hackneys'.

The court decided that a licensing authority when considering an application for a licence under section 37 of the Town Clauses Act 1847 must have regard: (a) to whether the applicant intends that the hackney carriage if licensed will be used to ply for hire within the area of that authority; and (b) whether the applicant intends that the hackney carriage will be used (either entirely or predominantly) for private hire remotely from the area of that authority. The court considered that an authority may exercise its discretion to refuse a licence on this basis.

The decision presents licensing authorities with a problem as Brentwood BC v Gladen [2004] EWCH 2500 (Admin) recognised the right of hackney carriages to take pre-booked work in areas outside that in which they were licensed. Licensing authorities will need to consider the extent of out of area working envisaged by an applicant when considering licence applications '“ a balancing act that will inevitably be open to challenge should a licence be refused on this basis.

Objectives and conditions of a licence

In R (on the application of Bristol City Council) v Bristol Magistrates' Court [2009] EWCH 625, an application by Somerfield Stores Limited for a premises licence was considered by Bristol City Council's licensing sub-committee for determination. The licence was granted subject to conditions. Somerfield appealed successfully to remove the conditions to Bristol Magistrates' Court. The City Council judicially reviewed the decision of the magistrates' court.

This case is of great importance as it clarifies the status of the section of the operating schedule which deals with the steps that the applicant proposes to take to promote the licensing objectives and also considers whether conditions may be placed on a licence which duplicate responsibilities already existing under other legislation.

The appellant was keen to establish the status of the operating schedule and what an authority was to do if presented with an operating schedule expressed in unclear and/or ambiguous terms. How was the authority to translate such provisions into enforceable conditions on the licence? Also, what was an authority to do if other legislation covering an area such as noise (e.g. the Environmental Protection Act 1990) was not considered to afford sufficient protection for local residents?

The Administrative Court found: (a) that a licensing authority is not tied to the contents of the operating schedule and that there is no obligation on it to impose conditions 'consistent with the operating schedule' unless these were necessary and proportionate for promotion of the licensing objectives; and (b) that licence conditions must not duplicate other legislation unless it can be shown in the particular case that such conditions are for some specific reason both necessary and proportionate.

Applicants for premises licences can now resist conditions being placed on their licence if they duplicate other legislation and authorities cannot embark simply on a redrafting exercise of the relevant section of the operating schedule but must consider whether conditions are necessary and proportionate for the promotion of the licensing objectives.

Breach of a premises licence

Hall & Woodhouse Limited v The Borough and County of the Town of Poole [2009] EWHC 1587 (Admin) was an appeal by way of case stated against the conviction of the appellant at Bournemouth Magistrates' Court on four charges of carrying on a licensable activity otherwise in accordance with a licence contrary to section 136(1)(a) of the Licensing Act 2003. The appellant, a brewery, had leased a public house to a tenant but retained the premises licence. Breaches of the premises licence occurred at the premises.

The respondent argued that the premises licence is at the heart of the system of licensing control and that the licence holder, while taking the advantages conferred by the licence, cannot divest himself of all responsibility simply by leasing the premises to a third party. The premises licence holder is responsible for ensuring that the licensable activities are carried out in accordance with the licence. If breaches occur through no fault of the licence holder he can avail himself of the defence of due diligence. If the appellant was not carrying on the licensable activities at the premises he should not have held the licence which should have been held by the tenant.

The court found that whether a person could be held liable under section 136(1)(a) was a question of fact and that the holder of the premises licence was not automatically liable for breaches of the premises licence. The court also held that the wording of the requirement under section 16(1)(a) of the Act that to apply for a premises licence a person must be 'a person who carries on or proposes to carry on a business which involves the use of the premises for the licensable activities to which the application relates' is different from the wording of section 136(1)(a) where a person will be liable 'if he carries on or attempts to carry on a licensable activity otherwise than in accordance' with a premises licence.

This decision appears to place a premises licence holder, simply as premises licence holder, outside the ambit of criminal liability for breaches of a premises licence unless it can be shown that the premises licence holder was actually carrying on the licensable activities at the time of the breach. The court held that this would be a question of fact to be decided in the circumstances of each case. A narrow interpretation would limit the decision to situations such as that of Hall & Woodhouse where the premises were leased to a third party. Would a wider interpretation stretch to any premises licence holder unless he was physically carrying on the licensable activities at the time of the breach of the licence?