Monthly Archives: March 2012

HOME OFFICE GUIDANCE ON USE OF CLOSURE NOTICES UNLAWFUL

HOME OFFICE GUIDANCE ON USE OF CLOSURE NOTICES UNLAWFUL

The Home Secretary has submitted to a judgment in the High Court which establishes that Home Office Guidance on closure notices is unlawful. The Guidance was used by the Home Office and the Police to justify the immediate closure of premises trading in alleged breach of conditions on their licence. In what is thought to be a first, both the Home Office and the West Yorkshire Police have agreed to pay damages for their unlawful conduct.

The Claimant was represented by Michael Kheng, of Kurnia Licensing Consultants based in Lincolnshire, who instructed Philip Kolvin QC, head of the licensing team at Cornerstone Barristers and one of the UKs leading licensing QCs, and Sarah Clover, Barrister of No.5 Chambers, in the claim.

The case centered on guidance issued by the Home Office in November 2010 entitled “Practical Guide for Preventing and Dealing with Alcohol related Problems: What You Need to Know” (Third Edition).”

Appendix W stated:

“Q. What is the effect of a closure notice?

A. 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 premise continues to sell alcohol after I have issued it with a S19 closure notice?

A. Anyone who sells alcohol after a closure notice has been issued and is in effect can be arrested or summonsed for the criminal offence under      s.136 of unlicensed activity.”

Relying on that guidance, in February 2011, West Yorkshire Police mounted a series of five enforcement actions against The Bank, Wakefield, either accompanied by Home Office officials or pursuant to training given by the Home Office. The Police served S19 closure notices and then immediately forced the Claimant through threats of arrest to the Designated Premises Supervisor to close the bar. The bar was duly closed on each occasion. The effect of the closure was the loss of profits both on the night of the closure and on subsequent trading nights too.

The Claimant brought a judicial review claim against both West Yorkshire Police and the Home Office, claiming that the Guidance, and the Police action in reliance on the Guidance, was wrong in law.

At the root of the claim was the allegation that closure notices served under section 19 of the Criminal Justice and Police Act 2001 are not closure orders. A closure notice merely warns the licensee that if the matter of breach is not rectified within 7 days the police may apply to the magistrates’ court for a closure order pursuant to section 20 of the Criminal Justice and Police Act 2001.

Further, the claim stated that while a breach of a licence condition is potentially a criminal offence under section 136 of the Licensing Act 2003, this does not automatically give rise to a power of arrest. The Claimant pointed out that arrest is governed by 24(5) of the Police and Criminal Evidence Act 1984, which provides strict conditions which have to be satisfied before a person may be arrested without a warrant. These include where the identity of the person arrested is unknown, where arrest is necessary to prevent a person suffering injury, or to prevent loss of or damage to property, to prevent an offence against public decency or unlawful obstruction of the highway, or harm to a child or a vulnerable person, or to allow prompt investigation of the offence to prevent disappearance of the person arrested. Obviously, it will only be in very rare circumstances that such conditions are satisfied in the case of breach of licence conditions by licensed premises.  None of them was satisfied in the case of the Bank.

The Bank also claimed that its human right to trade and to rely on its licence had been abused by the Police actions. The unlawful threats by West Yorkshire Police to arrest the Designated Premises Supervisor if the premises did not close amounted to an unlawful interference with that right. As a result of closing the Claimant suffered loss of profits on the nights of the closure and damage to the goodwill of its business. Accordingly, the Bank claimed damages pursuant to section 8 of the Human Rights Act 1998 and/or section 31(4) of the Senior Courts Act 1981.

West Yorkshire Police conceded that the Guidance was unlawful, that its actions had been illegal and that it was liable to pay damages. The Home Office withdrew the on-line version of the Guidance and wrote to all Chief Constables pointing out the legal errors in the Guidance. However, the Claimant continued to pursue the claim, because a more public acknowledgment of the true effect of the Criminal Justice and Police Act 2001 was required.

Mr. Justice Edwards-Stuart ruled that the Claimant was entitled to have recorded in a court order that the Guidance was unlawful.

The High Court has now approved a consent order requiring the Police and the Home Office to pay the Bank substantial undisclosed damages for loss of profit.

The order also records that the West Yorkshire Police and the Home Office accept that:

The service of a Closure Notice pursuant to section 19 of the Criminal Justice Police

Act 2001 does not:

  1. a.      Require the premises to close or cease selling alcohol immediately; or
  2. b.      Entitle the Police to require it to do so; or
  3. c.     Entitle the Police to arrest a person on the sole ground of non-compliance with the Notice.”

The Police and the Home Office also agreed to pay the Claimants’ costs.

Michael Kheng stated:

“This was a clear case of over-enforcement causing damage to the goodwill of a business, not to mention the intimidation felt by the licensee confronted by police officers requiring him to close there and then. My client and I felt it right to pursue this matter to a judgment, so that the legal position is clearly established, to protect future licensees from similar conduct. We are both hugely grateful to Philip Kolvin QC and Sarah Clover Barrister whose expertise was instrumental in bringing about this result.”


THE GOVERNMENT’S ALCOHOL REFORMS

THE GOVERNMENT’S ALCOHOL REFORMS

Introduction

The Government is determined to ensure that alcohol is no longer the driver of crime and disorder and unacceptable harms that it has been over the past decade. Nearly half of violent crime (almost a million crimes) is believed to be carried out by individuals under the influence of alcohol.[1] The Government has legislated via the Police Reform and Social Responsibility Act 2011 (PRSR Act) to overhaul the Licensing Act 2003 and to rebalance it in favour of local communities. The new measures give the police and licensing authorities in England and Wales more local powers to tackle irresponsible premises and crack down on unacceptable sales of alcohol to children. Going forward, the Government’s new Alcohol Strategy sets out in more detail the wide range of action that it is taking to tackle the issue of excessive alcohol consumption.

Timing for commencing the alcohol provisions in the PRSR Act

The Government intends to bring into force all the PRSR Act alcohol reforms on 25 April 2012, except for those that require complex secondary legislation, including: early morning alcohol restriction orders (EMROs), the late night levy and locally set fees. We expect to introduce these measures in October 2012 or April 2013.

The measures intended for implementation on 25 April 2012 are as follows.

  • Sending out a strong message that the Government will not tolerate the sales of alcohol to children by doubling the fine for persistent underage sales to £20,000, and making it easier to shut down businesses found guilty. The new legislation also increases the period of voluntary closure, as an alternative to a fine, from 48 to 336 hours (Section 118 of the PRSR Act).
  • Giving licensing authorities (LAs) greater powers and flexibility by making them responsible authorities in their own right under the Licensing Act 2003. This gives them stronger powers to, for example, remove licences from, or refuse to grant licences to, premises that are causing problems without having to wait for the police or another responsible authority (section 103 of the PRSR Act).
  • Giving health bodies a greater say by making them “responsible authorities” so that they are automatically notified about new premises applications and can make representations, although these must be relevant to the existing statutory licensing objectives (Section 104).  Applies to Primary Care Trusts in England (primary health functions of local authorities after NHS reform) and Health Boards in Wales.
  • Increasing flexibility for, and reducing the burdens on, licensing authorities by lowering the evidence threshold for decisions made under the Licensing Act 2003 (sections 109 to 111 of PRSR Act).
  • Allowing licensing authorities to suspend premises licences due to non-payment of annual fees (section 120 of the PRSR Act).
  • Giving local residents a greater say by scrapping the ‘vicinity test’ so that anyone can make representations about licensing decisions regardless of whether they live close to the premises concerned and requiring LAs to publish more information on-line (Section 105 -108 of the PRSR Act and changes to Licensing Act Regulations 2005).
  • Reforming the system of Temporary Event Notices (TENs) to prevent it being exploited by unscrupulous operators e.g. allowing environmental health authorities (EHAs)  powers to object to a temporary event notice in addition to the police; extending the grounds on which the police and EHAs can object to all four of the statutory licensing objectives: crime and disorder; public safety; public nuisance; and the protection of children from harm; giving LAs the discretion to impose any existing licence conditions on a TEN if there are objections from the police or the EHA. Alongside this, reforming TENs to increase flexibility e.g. by extending the period that may be covered by a single TEN from 96 hours (four days) to 168 hours (seven days) and introducing a new process to allow a limited number of late TENs submitted up to five days before an event (sections 112 -117 of the PRSR Act).
  • Reducing the burden on LAs by changing the frequency for publication of Licensing Policy Statements from 3 to 5 years (section 122).
  • Adding various offences to the list of relevant offences at Schedule 4 of the Licensing Act 2003 – to be taken into account by LAs in granting new personal licences and, in the event of convictions, for the suspension and forfeiture of personal licences following convictions for relevant offences (section 123).
  • Requirement that the Secretary of State reviews the effect of amendments five years after their commencement (section 124 of the PRSR Act).

Statutory and other guidance

In April 2012, the Government also intends to issue new statutory guidance under section 182 of the Licensing Act 2003. As announced in December 2010, it is also intended that the new guidance will include various other changes including express guidance to LAs to accept “reasonable representations” from the police; that cumulative impact policies will have a lower evidential hurdle for introduction; allowing LAs to adopt measures such as fixed or staggered closing times; and a requirement on licensing applicants to give greater consideration to the local area. The Home Office will also produce separate guidance for health bodies on their role as responsible authorities and is consulting representatives of health bodies in England and Wales on this. We will make preliminary guidance sheets available on the website as soon as possible. http://www.homeoffice.gov.uk/drugs/alcohol/licensing-act-next-steps/

PRSR Act measures for implementation later in 2012/13

The Government is in the process of consulting publicly on the detail of the two measures in the PRSR Act that specifically target problems of late night drinking – EMROs and the late night levy (section 119 and sections 125 to 139 of the PRSR Act).  The public consultation closes on 10 April and is available via the Home Office website. http://www.homeoffice.gov.uk/publications/about-us/consultations/late-night-drinking/

The Government expects to introduce the secondary legislation on EMROs and the levy for commencement in October 2012. At that stage, it also intends to repeal the earlier legislation on Alcohol Disorder Zones at the same time. Further information about plans for the implementation of locally set licensing fees will also be available later this year.

Additional background

The Government’s response to the public consultation in December 2010 and a series of factsheets at the Bill stage that explain more on the policy aims behind the PRSR measures are available on the Home Office website.

http://www.homeoffice.gov.uk/drugs/alcohol/rebalancing-consultation/

Alcohol team, Home Office, 23 March 2012


[1]   44% of all violent crime as perceived by victims. 928,000 violent crimes, British Crime Survey (BCS) 2010/11


Kurnia to move from retailing to concentrate on consulting

For those who follow Kurnia Licensing on Twitter and Facebook you will already be aware of my plans to exit the retail side of the industry.

Over the past few years I have reduced the estate down to four outlets, three freeholds and one leasehold. The Cloud Bar in Lincoln is held on a free of tie private lease and we are looking to dispose of our interest in the Cloud Bar. The remaining three outlets are all based in Mablethorpe, Lincolnshire and we are looking to create new leases to suit a tenant so as to retain the freeholds within my companies existing rental portfolio that is made up of a mix of retail and residential units in Lincolnshire.

Six years ago I started up Kurnia Licensing Consultants and what started as a hobby, where I wanted a couple of dozen clients, has grown to over four hundred clients throughout England and most of my time is now spent on the consultancy side. Current changes in legislation that look set to come in this April, and further changes in the autumn, will see the consultancy requiring more of my time.

Although I may be exiting the retail side of the industry I shall not be leaving the industry, I have after all spent all my working life within the industry and feel it is one the best industries to work in. Retaining the pubs within our property portfolio will mean that I will be keen to assist our tenants so I guess I will become a very small pub landlord although my leases will all be free of tie and have none of the politics that some tenants may face and I might become a mini BDM.

Whilst it will be strange not operating pubs (once I find tenants that is) I do look forward to being able to divest most of my time to the consultancy side. We have a great team that work for the company on the pub side and I would like that them all for their contributions and hope most will remain at the sites with any new operator. Fresh minds in the pubs also will bring fresh ideas so the sites will only improve.

I have instructed Fleurets to look after the marketing of the Mablethorpe sites and details are available on their website.

http://www.fleurets.com  Ref E-4440, E-4441 and E-4443

I guess I should use this opportunity to say as I might have some spare capacity on the consultancy side if you need any assistance in any legal matters please contact me.