Update: licensing

Two recent High Court cases are of particular interest to licensing practitioners. One concerns a taxi prosecution and contains important lessons for prosecutions generally; the other provides valuable assistance on the time limits for making representations to applications under the 2003 Act. The last six months have also seen significant legislative developments that emphasise forcefully the retreat from liberalisation of alcohol licensing and the move into increased regulatory control. Finally, lap dancing-type establishments too have been subjected to the possibility of increased regulation.

Late objections

R (on the application of (1) Albert Court Residents' Association (2) Albert Court (Westminster) Management Co Ltd (3) Albert Court (Westminster) Freehold Co Ltd (4) and others v Westminster City Council and Corporation of the Hall of Arts & Sciences (interested party) [2010] EWHC 393 (Admin) concerned an application for variation of the premises licence for the Albert Hall. Westminster City Council's policy is to write to those living in the vicinity of premises for which a licensing application had been made. Letters were not received by a number of residents living close to the premises. When they became aware of the application, some of these residents made late representations. These were not entertained by the licensing authority, and the variation was granted. The decision was judicially reviewed on two grounds: first, that the representations should have been admitted by the authority and, second, the absence of letters to some of the residents.

The House of Lords in Belfast City Council v Miss Behavin' Limited [2007] UKHL 19 (see Solicitors Journal 152/24, 17 June 2008) decided that late objections could be considered by a licensing committee but at the committee's discretion. However, the Belfast case was distinguished by Mr Justice McCombe in the Albert Hall case as the Licensing Act 2003 provides for clear statutory timescales which could not 'be undermined by letting in late applications through a backdoor not provided by the Act itself'. The challenge on that ground, therefore, failed. However, it was also held that the notification process was 'so bad as to be irrational and, therefore, unlawful'. That challenge thus succeeded and the decision to allow the variation accordingly was quashed. There are valuable lessons in this judgment in relation to the way in which an authority carries out the obligations contained in its licensing policy and the status of late representations.

'Forensic ambush'

Stratford-on-Avon District Council v Dyde [2009] EWHC 3011 (Admin) concerned the prosecution of a taxi driver for overcharging. A 'test-purchase' by way of a pre-booked fare had been set up by officers of the authority. The defence contended by way of submissions that the evidence of the undercover officers should be excluded under section 78 of the Police and Criminal Evidence Act 1984 as the defendant had been induced to commit the offence by the officers. The magistrates excluded the evidence. The prosecutor accordingly offered no evidence and the informations were dismissed. It was held by the High Court that the evidence should not have been excluded and the case was remitted to be heard before a fresh bench of magistrates.

Advocates in the magistrates' courts will be familiar with submissions that seek to remove or show the absence of an essential element of the prosecution case, often by way of a half-time submission, that lead to charges being dismissed. It was thought to be fair game for defending advocates to keep such challenges up their sleeve and to catch the prosecution unawares. However, as Mr Justice Openshaw made clear: 'This type of forensic ambush should never happen. It is a clear obligation under the overriding objective of the Criminal Procedure Rules to give such notice and the failure to do so is, at best highly regrettable, and, at worst, a breach of professional obligation to the court and to the other parties and, in my judgment, such conduct should not pass without some specific condemnation.'

Cracking down on the leisure industry

While the new coalition government has expressed commitment to removing some of the huge volume of regulatory measures introduced by the outgoing Labour government, it seems that the leisure industry is not included in this endeavour.

First, the Queen's Speech (25 May 2010) heralded the Police Reform and Social Responsibility Bill which will include measures that 'will overhaul the existing licensing regime to tackle the drink-fuelled violence which is blighting many of our communities' (home secretary, Theresa May). The main measures include stronger powers for the police and local authorities to deal with problem premises, minimum alcohol pricing (recommended in a recent NICE report) and increased powers to deal with underage sales of alcohol including a doubling of the maximum fine to £20,000.

Second, the Crime and Security Act 2010 came into force on 8 April, making provision for new powers for local authorities to ban alcohol sales within a specified area between the hours of 3am and 6am (and will apply to all premises selling alcohol, both off and on-licensed). While the hours cannot be altered or reduced, the ban may be limited to certain days of the week or for a certain period of time. If no time limit is specified, the order will apply indefinitely unless it is revoked or varied by the authority.

These powers await a commencement order to be brought into force. They will apply where it can be shown that alcohol-related nuisance or disorder is occurring in an area but where it cannot be attributed to any particular premises. A licensing authority considering introducing such a ban will be required to show that the restriction is necessary for the prevention of crime and disorder, public nuisance and/or for public safety.

Consultation must be carried out with those affected by the ban and a public meeting held to discuss the measure, which is effectively a method of suspending 24-hour licences from all establishments in a particular area '“ a classic example of legislative repentance.

Third, new powers under the Policing and Crime Act 2009 in relation to lap dancing-type establishments came into force on 6 April in England and 8 May in Wales, together with newly published Home Office guidance. This allows for further regulation by local authorities of these establishments by requiring them to apply for a sex establishment licence. This would then give local people the opportunity to object to a licence on the basis that it would be inappropriate given the character of the area in which the premises are or are intended to be sited.

Lastly, the Licensing Act 2003 (Mandatory Licensing Conditions) Order 2010 has introduced five new mandatory conditions onto premises licences which authorise the sale of alcohol.

New mandatory conditions

In December 2008, the government set out its intention to introduce a mandatory code of practice for the alcohol industry and issued a consultation document in May 2009 ('Safe. Sensible. Social. Selling Alcohol Responsibly: A Consultation on the New Code of Practice for Alcohol Retailers', Home Office). In her Ministerial Foreword, the home secretary said: 'These powers will not affect the majority of businesses, small or large, who behave responsibly '“ but is intended to firmly target those that do not.'

Three of the Licensing Act conditions took effect from 6 April 2010. These are the banning of 'irresponsible [drink] promotions', the banning of alcohol 'dispensed by one person directly into the mouth of another' '“ 'the dentist's chair' (there is an exemption for those 'unable to drink without assistance by reason of a disability') and the provision of free drinking water. These conditions apply to all on-licensed premises and clubs operating under a premises certificate but not to off-licensed premises and temporary event notices. The remaining two, the introduction of an age verification policy (for example, 'challenge 25') and provision of smaller size measures of alcohol (for example, 'still wine in a glass: 125ml'), come into effect on 1 October 2010.

Age verification policies (already widely used), smaller sized glasses, free drinking water and the dentist's chair (more of a myth and a symbolic measure) appear to pose few problems. But what constitutes an irresponsible drink promotion? Paragraph 1(2) of the order lists in detail five types of promotion, which include drinking games and unlimited alcohol for a fixed price. Importantly, these promotions, in order to become irresponsible promotions, must be 'carried on for the purpose of encouraging the sale or supply of alcohol for consumption on the premises in a manner which carries a significant risk of leading or contributing to crime and disorder, prejudice to public safety, public nuisance, or harm to children'. The DCMS guidance (March 2010) has been amended but does not provide much assistance, although it does single out 'all you can drink for £10' as likely to come within the condition. The guidance also provides a web link to guidance produced by the Home Office on the mandatory conditions, but the guidance has been removed from the Home Office website.

A 'responsible person' (as defined in section 153(4) of the 2003 Act) may be prosecuted for breach of a mandatory condition under section 136 of the 2003 Act which on conviction is punishable with a fine of up to £20,000 and/or six months imprisonment '“ the exception is the free tap water condition for which the premises licence holder or club premises certificate holder is responsible. Review proceedings may also be commenced, with or without a criminal conviction.

Existing premises licences do not need to be amended physically as the new conditions are deemed to be entered on the licence. However, most authorities will have written to premises licence holders to provide notification of the new conditions.

While the executive summary refers to 'a minority of licensed premises that put people at risk by encouraging excessive drinking through irresponsible promotions and maintaining an environment that undermines the four licensing objectives', all premises need to be aware of the nature and scope of these conditions to ensure compliance. There are, for example, many restaurants that do not offer wine in 125ml glasses and public houses that may occasionally run a 'yard of ale' competition.