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:
- a. Require the premises to close or cease selling alcohol immediately; or
- b. Entitle the Police to require it to do so; or
- 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.”