Licensing Act 2005 Licence Update

LICENSING COMMITTEE

16 SEPTEMBER 2009

INFORMATION UPDATE

Licensing Act 2005 Licence Update

Designated Public Place Orders (DPPOs) are growing

Since 2001, more than 700 Designated Public Place Orders (DPPOs) have been made under the Criminal Justice and Police Act, giving the Police and other accredited persons, power to seize open and unopened containers of alcohol.
They are growing at the rate of 100 a year, up from the 613 recorded in a 2008 Manifesto Club report. Some cover whole cities, contrary to official guidance.
The first Alcohol-Ban Order was established by Coventry City Council in 1987, which passed a byelaw to prevent public drinking.
Failure to comply with a request without reasonable excuse can result in a Penalty Notice for disorder of £80; Arrest and Prosecution with a maximum fine of £500 (shortly to be increased to £2500) and the use of Bail Conditions to stop the individual from drinking in public.
Updated guidance published by the Home Office last December says DPPOs should only be used in areas that have experienced alcohol-related disorder or nuisance: ‘they are not intended to disrupt peaceful activities, for example families having a picnic in a park or on a beach with a glass of wine’.
It would be inappropriate to challenge drinkers who are not causing a problem.
The Guidance goes on to say that the Power is to be used explicitly for addressing nuisance or annoyance associated with public drinking. Borough-wide Orders are not prohibited, but the DPPO must be proportionate and therefore only target those areas where there is evidence of alcohol-related anti-social behaviour – local authorities must be able to show there is a problem in every part of their area before making a widespread order.
INAPPROPRIATE ORDERS
The Manifesto Club’s research found that there are citywide bans in Coventry and Brighton, even in quite suburban streets. Birmingham’s attempts to introduce a citywide ban had to be backed down following public opposition, but is instead introducing one area by area.
In London, a borough-wide ban applies in Camden apart from on Hampstead Heath, Regent’s Park and Primrose Hill. Lambeth is considering a borough-wide order without any exemptions.
OVER-ZEALOUS ENFORCEMENT
Police routinely ignore the Home Office Guidelines and seize wine and beer from well-behaved adults, The Manifesto Club found. Cases were found of alcohol being taken from adults who had just brought them from an off-licence and were on their way home. Particular areas of concern were found in:

• Driffield, East Yorkshire – 117 people had their alcohol confiscated, out of a population of 11,000,
• Warwickshire Police took 150 cans and bottles in two evenings during Stratford-upon-Avon’s annual Mop Fair last October – and only one person was arrested for being drunk and disorderly and
• Brighton and Hove’s 45 Police Community Support Officers make 25 confiscations a week.
  

On current trends, the Manifesto Club estimates that 20,000 bottles and cans will be confiscated over the summer months. Last Thursday it held a debate on Booze Bans in Brighton, and on Saturday 27 June will be holding a picnic against Booze Bans on Brighton Beach.
Josie Appleton, author of the Report, said she hoped it would result in a more proportionate response towards outdoor drinking.
“These measures were designed to tackle serious public drunkenness and disorder, yet they are being used against people doing absolutely nothing wrong,” she said.
GOOD PRACTICE
Portsmouth Council introduced a DPPO with a protocol to be agreed with the Police as to its enforcement. Individuals would only be approached and be asked to stop drinking if:

1. they were engaged in anti-social behaviour or disorder,
2. the Police were of the view that there was likely to be anti-social behaviour or disorder; or
3. complaints had been received from other members of the public.
   This approach allowed Portsmouth to target those individuals causing nuisance related to the consumption of alcohol while leaving undisturbed those who were not causing a nuisance.

Local authorities cannot consider abuse of process on review

The Judgment came at the end of a challenge to Guildford Borough Council by Michel Harper, the owner of the Drink/Voodoo Lounge in Onslow Street, Guildford.
In September 2008, the Chief Officer of Guildford Police started a review of the Premises Licence for the Bar, based on allegations of violence by door staff on customers. At the Review Hearing before Guildford Council’s Licensing Sub-Committee Mr Harper argued that the Review ought to be stayed as an abuse of process.
He alleged that the Police had failed to discuss alternatives to review, in breach of an enforcement protocol to which the Police were allegedly a party, together with service level agreements and the enforcement concordat. He also argued that the Police had given him a legitimate expectation of such negotiations.
The Licensing Sub-Committee ruled that it had no jurisdiction to consider abuse of process arguments, and also refused an adjournment to permit it’s ruling to be judicially reviewed. It proceeded to determine the merits of the Review, deciding to remove Mr Harper as the Designated Premises Supervisor, and ordering an upgrade of the CCTV provision.
Mr Harper sought permission to judicially review the Police’s Decision to bring the Application for review, together with the Merits Decision made by the Licensing Sub-Committee and its Jurisdictional Ruling. He obtained leave to proceed only with the last of these – a challenge to the Council - whereupon the Police dropped out of the Proceedings, which were then defended by the Council alone.
Mr Harper, represented by Kevin de Haan QC, argued that the right of fairness enshrined in common law and in Article 6 of the European Convention for Human Rights demanded that there be a general right in administrative tribunals to stay proceedings for an abuse of process, unless excluded by the specific words of the statute. If a specific right was needed, it was found in section 9(3) of the Licensing Act 2003, which permits licensing authorities to control their own procedure.
Charles J, however, preferred Guildford’s argument advanced by Phillip Kolvin QC that there was no inherent power in administrative tribunals to stay proceedings for abuse of process, and that if such a power was to be implied, it would have to be as a result of a process of statutory construction.
Relying on cases principally from the field of immigration, the Council argued successfully for a series of tests to be applied in order to ascertain whether a power was to be implied, including:

• whether the Statutory Language justified such implication,
• whether the Statutory Language led to the conclusion that the Power must be implied in order to enable the Authority to carry out its functions,
• whether the intention of Parliament would be defeated if the Power were not implied’
• whether a general abuse power would be inconsistent with the express language of the Act,
• whether the integrity of the regime was sufficiently protected by other powers, and
• whether the power could be implied without difficulty.

As to the language of the Act, the Judge accepted Guildford’s argument that the Licensing Authority was given specific power in section 51 of the Act to dismiss review applications by all parties on the grounds of irrelevance to the Licensing Objectives, and by interested parties on the grounds that they are frivolous, vexatious or repetitious.
This was a powerful indication that Parliament did not intend a wider abuse-type jurisdiction. Section 9(3) of the Act was intended to permit a licensing authority to control its own procedure, not to bring the entire proceedings to a halt.
The Judge also further held that while there is an adversarial aspect to the Act, there was also an investigatory element as demonstrated by Regulation 23 of the Hearings Regulations, which provides for the Hearing to take the form of a discussion.
He held that it would defeat the intention and policy of the Act for informal proceedings to be waylaid by an essentially collateral attack, and that Parliament had not intended Local Councillors to become involved in such arguments.
Finally, if it could genuinely be said that a statutory agency had abused its own powers by starting a review application, the remedy was to apply for judicial review, with all the safeguards which such procedures entail, rather than expecting Local Councillors to exercise essentially public law powers. The general requirement of fairness, which was undoubted, was amply satisfied both by this right and the procedural powers expressly placed in the hands of licensing authorities.
The judgment is of obvious importance both within and outside the field of licensing, because it establishes the principles upon which it will be decided whether administrative tribunals are to exercise abuse-type powers in future cases. For licensing authorities, it gives further assurance to sub-committees that their function is to determine the merits having regard to the Licensing Objectives, and not to become distracted by collateral arguments.
The decision of the Council on the Merits will now proceed to an appeal in Guildford Magistrate’s Court in September 2009.

Loophole over DVD age rating law

Retailers who sell violent video games and 18-rated DVDs to children cannot be prosecuted because of a legal blunder 25 years ago.

Dozens of prosecutions under a 1984 Act have been dropped because the Government of the day failed to notify the European Commission about the Law.

But previous prosecutions will stand, according to the Department for Culture Media and Sport (DCMS).

The Lib Dems said the error had "thrown film censorship into chaos".

The Video Recordings Act (VRA) was brought in by Margaret Thatcher's Government and set down that videos and video games must be classified and age rated by the British Board of Film Classification.

It made it illegal to sell violent video games to children and the most explicit adult films could be sold only in licensed sex shops.

'Unfortunate situation'

Culture Media and Sport Minister Barbara Follett has written to the industry bodies to inform them the Act was "no longer enforceable".

“ Our legal advice is that those previously prosecuted will be unable to overturn their prosecution or receive financial recompense ”
DCMS

In her Letter, she said: "Unfortunately, the discovery of this omission means that, a quarter of a century later, the VRA is no longer enforceable against individuals in United Kingdom courts."

Mrs Follett said the Government hoped to remedy the "unfortunate situation" as quickly as possible.

She asked the Industry Bodies to handle the situation with "care and sensitivity" to ensure "minimal" advantage is taken of the loophole.

The loophole means no one can be prosecuted until the Law is passed again and that will take three months.

A spokeswoman from the Government Department said retailers had agreed to keep to the rules on a voluntary basis and previous prosecutions will still stand.

"Our legal advice is that those previously prosecuted will be unable to overturn their prosecution or receive financial recompense," she said.

'Outrageous' delay

Ministry of Justice figures for 2007, the latest available, show 87 people were convicted under the Act for offences including supplying material which should be sold only in sex shops and selling unclassified work.

The error was discovered during work on the UK Government's Digital Britain Project, which aims to boost broadband and new media in the UK.

LACORS raises concerns about Defra’s greyhound track plans

LACORS’ response to the consultation on the regulation of greyhound tracks highlights concerns that the regime proposedby Defra is significantly flawed and contrary to better regulation principles.

LACORS does not believe that Councils are best placed to oversee the operation of the licensing regime as currently proposed, and calls on Defra to reconsider its proposals.

The Consultation response also calls on Defra to give renewed priority to the proposed review of existing legislation covering dog breeders, animal boarding establishments and pet shops.

Background
If passed, the Welfare of Racing Greyhound Regulations 2010 would be introduced as secondary legislation under the Animal Welfare Act, coming into force in April 2010.

The new rules would require all greyhound tracks to obtain a licence from their District/Unitary Council in order to operate, unless they are members of Greyhound Board of Great Britain (or other body accredited to the relevant UKAS standard). In practice, this would mean that the six independent tracks currently operating in England would need to be licensed by their Council, whilst ‘industry’ tracks would be subject to a system of self-regulation by the Greyhound Board of Great Britain (GBGB).
Under the proposals, Councils would grant licences for up to three years, on the basis that the conditions prescribed in the Legislation are met. Councils

would not be able to attach locally set conditions to the Licence. There would be no offences contained within the secondary legislation and, as such, no offence for failing to comply with licence conditions.

LACORS’ concerns - summary
Defra’s Consultation Papers reference public concern about the fate of ex-racing dogs. It is LACORS’ view that these Regulations, including the identification requirements, will have no significant impact on the fate of retired racing greyhounds.

LACORS does not believe that the risk posed by the six independent greyhound tracks currently operating in England - or the additional degree of protection racing greyhounds would be afforded by these Regulations (given that we do see the regulations impacting on retired dogs) - is sufficient to justify the introduction of a new statutory licensing regime administered by Councils.

We question the effectiveness of a set of Regulations, which contain no offences. Track operators will not commit an offence if they fail to comply with the requirements of the Legislation, only if they operate without a licence (an offence under section 13 of the Animal Welfare Act). This limits the range of enforcement tools and sanctions available to local authorities, with implications for compatibility with better regulation principles. Although Councils will be able to suspend and revoke the Track Licence, there are likely to be circumstances in which a prosecution for a specific offence is more proportionate and appropriate than the removal of a business’ right to operate.

We believe the mechanisms for suspending and revoking licences contained with these Regulations are unworkable in practice. The current proposals would set up a system whereby a person with a suspended/revoked licence could continually reapply to the Local Authority. The ‘point in time’ nature of the majority of the Licensing Conditions – i.e. where compliance can only be judged at the point of racing, not the point of application (e.g. presence of vets, recording of dogs) – would severely limit the Licensing Authority’s ability to refuse a licence application, even in instances where the operator had previously demonstrated persistent non-compliance.

Defra has previously indicated to LACORS that they believe that sections 4 and 9 of the Animal Welfare Act could be used to penalize track operators that do not comply with the requirements of the Welfare of Racing Greyhounds Regulations. LACORS reiterates that the Animal Welfare Act remains a discretionary function for Councils. In addition, we do not believe that the Animal Welfare Act would be an effective or efficient mechanism for dealing with track owners that breach the Condition of their Licence.

Frank Wenzel

The Principal Licensing Officer

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