BOROUGH OF POOLE

LICENSING COMMITTEE

7 MARCH 2012

LICENSING ACT 2003 – INFORMATION UPDATE

BREATH TEST CONDITION

The landlord of a pub in Llanarth was both prosecuted and reviewed with regard to various breaches of his licence. He received a fine in excess of £2,000 following conviction for offences relating to his CCTV system, door supervisors and allowing underage persons to drink alcohol in the premises.

He may consider himself lucky not to have had his Personal Licence revoked by the Magistrates at the same time.

Separately he faced Review proceedings but his Premises Licence was not revoked. Instead a condition was attached to his licence requiring him to use a Police approved Breath Test Machine before allowing anyone under the age of 18 on to his premises. This is a rather unusual condition - and perhaps the first time such has been imposed - and it is perhaps surprising that under 18s are allowed in the premises at all.

CLUB OWNER ORDERED PERSONALLY TO PAY £72,400 LEGAL COSTS

Magistrates in Bristol have ordered former club owner, John O'Malley, to pay Bristol City Council £35,000 and Avon & Somerset Constabulary a further £37,400 as a contribution towards the legal costs incurred by each authority in contesting two appeals against the revocation of the licence attaching to his former nightclub, Panache.

When dismissing his appeals the Magistrates had said "The decision of the Council Licensing Committee was manifestly fully justified and correct at the time (October 2010) and subsequent events have confirmed beyond doubt that it was so".

In a highly unusual move, the Magistrates also accepted legal submissions made on behalf of each authority and ordered Mr O'Malley to pay the costs personally, even though both appeals had been brought by the limited company which held the premises licence. The authorities argued that in an earlier hearing the club owner, when urging the High Court to permit the club to remain open, had volunteered that the company would otherwise be insolvent. They said that since that time the appeals were in reality being pursued on behalf of Mr O'Malley personally, so that it was appropriate that he should bear the cost.

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AGENDA ITEM10

Following the decision barrister Jeremy Phillips, who had represented the Chief Constable (joined as a party to the proceedings) said "the magistrates' decision shows how careful individuals need to be when appealing licensing decisions. It would be unwise for anyone to regard themselves as wholly protected from the risk of an adverse costs order, even when limited companies are involved."

The case represented for the authorities the culmination of a long saga of regulatory proceedings, involving three licensing authority decisions to revoke the premises licence, three appeals against such decisions (the first compromised by the City Council in 2008, with the agreement of the police), two decisions to suspend the premises licence following an application for summary review, and one application by the licensee for stay of the order of suspension prior to a judicial review, discontinued shortly after the stay was lifted.

PEOPLE INJURED AT FIREWORK DISPALY

Four people were injured when fireworks at an organised public display were accidentally set off into a crowd.

Police were called to the incident at the Yuletide Festival in Market Square, Blandford Forum, Dorset, in December 2011. A box of fireworks discharged "incorrectly", according to police. Most hit a nearby wall but up to six went directly into the crowd.

The casualties suffered minor burns and eye injuries and were treated at the scene. No-one was seriously hurt.

The Blandford Forum People Community Website said: "Yuletide festival nearly ended in disaster when the fireworks display went wrong, launching rockets into the crowd of onlookers."

Its report said rockets began bouncing off the market stalls and exploding just above the heads of those in the crowd. The display was halted and the fireworks board moved further back before it continued safely, the website said.

Dorset Police said it was satisfied there was no "malicious or criminal intent" and will not be investigating. They passed the matter to Trading Standards and the Health and Safety Executive (HSE).

Organisers, the Blandford Yuletide Festival Group, said they were "very concerned about the firework display malfunction" and were "cooperating fully with the police and HSE investigation into the cause". "It would be inappropriate to offer any further comment until this investigation is complete," they added.

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LOCAL AUTHORITY TO DETERMINE LICENCE FEES

Fee levels under the 2003 Act are determined centrally by the Secretary of State and have continued to remain unchanged since they were originally set but this position may change in due course when Section 121 of the Police Reform and Social Responsibility Act 2011 is brought into force. Under Section 121, the Secretary of State has power to make provision through regulations for licensing authorities themselves to determine the amount of a fee payable to them, with a view to them securing full cost recovery from licence fees. 

New sections 197A and 197B are inserted into the 2003 Act by Section 121 and these set out the broad framework within which the Secretary of State will enable licensing authorities to determine fees, with the detail to be contained in subsequently enacted regulations. Section 197A(4) makes express provision for regulations to specify constraints on the power of licensing authorities to determine fees and the government has indicated that constraints will include a nationally set cap on fee levels. The licensing authority’s power is likely to extend to fees for all forms of authorisation – premises licences, club premises certificates, temporary event notices and personal licences – and authorities will be able to revise fees from time to time. Fees set can differ for different classes of case, although only when these are specified in regulations.

When determining the fee, an authority must equate fee income ‘as nearly as possible’ to its costs, a difficult task, and this is reflected in the broad measure of discretion given to an authority when making the assessment of income and costs, which can be ‘in such manner as it considers appropriate’ (s 197A(7)). Two types of costs can be taken into account, all of the ‘costs referable to the discharge of the function to which the fee relates’ and a ‘reasonable share’ of ‘general costs’ (s 197A(7)). These costs are further explained in s 197B(2) and (3) respectively. 

The first type of costs is expressed to include the administrative costs of the licensing authority and costs of the authority when acting otherwise than as the licensing authority. Administrative costs will most obviously include costs incurred when dealing with applications, for example, officer time, members’ expenses, any advertising costs, legal advice and appeals, as well as related costs, for example, keeping a licensing register, which authorities are required to do under s 8 of the 2003 Act. These costs are referable to the discharge of the function to which the application fee relates. An authority’s costs when not acting as a licensing authority will include its costs when acting as a responsible authority in relation to areas such as environmental health, planning, and health and safety.

In some cases, the licensing authority may also discharge responsible authority functions of child protection and trading standards, although these may alternatively be discharged by other bodies such as a local safeguarding children board or a County Council Trading Standards Department. Where these functions are discharged by the local authority, which may be the case

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where it is a unitary authority, the costs will fall within s 197B(2)(b) but not where they are discharged by other bodies. Government support for these costs to be taken into account when discharged by other bodies was not forthcoming when an amendment was introduced to the Police Reform and Social Responsibility Bill seeking to include these costs. The lack of support, which led to the amendment being defeated, was on the grounds that the ‘practical difficulties unfortunately outweigh the benefits’ and ‘would result in substantial extra bureaucracy’ (see HLDeb, vol 729, cols 876-880, 14 July 2011).

The second type of costs is general costs and three such costs are specified in s 197B(3). The first is costs referable to the authority's functions under s 5 of the 2003 Act, which are the costs involved in the licensing authority determining and publishing its Statement of Licensing Policy. The second is costs involved in monitoring and enforcing Part 7 of the 2003 Act on Offences and Part 8 on Closure of Premises. The third is costs incurred by the authority in determining and publishing the amount of licence fees under s 197A. Not all of the general costs can be taken into account when determining the licensing fee, for s 197A(7)(b) provides only for inclusion of ‘a reasonable share of the licensing authority's general costs’. What proportion constitutes a reasonable share has been (deliberately) left to the broad judgment of licensing authorities and, provided the share is not regarded as wholly unreasonable in the Wednesbury sense, an authority’s decision should be beyond challenge. Indeed, given that the Government has indicated that locally set fees are based on full cost recovery (see HC Public Bill Committee, col 718, 17 February 2011), it may not be wholly unreasonable to take into account most, if not all, of the general costs.

The costs specified in s 197B(2) and (3) are not the only costs that might be taken into account when determining licence fees, since the reference to costs in each subsection is expressed to ‘include, in particular’ the ones specified. These subsections therefore provide only a partial definition and costs other than those specified might be taken into account. Licensing authority costs associated with website maintenance and development, for example, might be included within the general costs, although not specified within s 197B(3). This is, of course, subject to whether regulations preclude the recovery of any specific costs in accordance with the power in s 197A(4) to specify constraints on the power of licensing authorities to determine fees. The regulations will provide the crucial detail of how expansive or restrictive the power of licensing authorities is to determine fees and it remains to be seen how far they will go towards enabling licensing authorities to secure full cost recovery.

"RES JUDICATA APPLIES TO THE TOWN AND VILLAGE GREEN REGIME"

On 14 December 2011, Surrey County Council accepted the report of an independent inspector that the doctrine of res judicata - i.e. that no matter should be litigated twice - applies to Village Green Applications.  The decision is significant because the inquiry was convened to determine the matter as a

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preliminary issue and heard comprehensive legal argument over three days.  Douglas Edwards QC and Ned Westaway, instructed by Clyde & Co, appeared for the landowner who successfully argued res judicata in the context of a second Village Green Application in Woking.  A previous application had failed, and the inhabitants sought through a fresh application to address the reasons for that failure.  However, the Inspector accepted the submissions on behalf of the landowner that res judicata applied and that it applied without exception save in cases of fraud (which was not alleged). "

JUDGE REJECTS DCMS GUIDENCE ON INTERIM STEPS

In an important and ground breaking decision, a District Judge has expressly rejected the DCMS guidance on the continuation of Interim Steps pending an Appeal following a final Review.

Gary Oates runs a nightclub called Chambers in Runcorn. Following an application by the Police for a Summary Review, Halton Borough Council suspended the licence as an Interim Step. At the final Review hearing the licence was suspended for three months. It was common ground that the final suspension (i.e., three months) did not have effect pending determination of that Appeal.

On Counsel, Mr Philip Kolvin QC's advice, however, Mr Oates reopened the premises pending the Appeal, on the basis that the suspension imposed at the Interim Steps hearing did not survive the final review decision. This is contrary to the DCMS guidance on expedited / summary reviews which advises that where an appeal is lodged, the Interim Steps continue until that Appeal is disposed of. During this period the Police, following the DCMS guidance, and disagreeing with the licensee's position, issued three Closure Notices under s19 of the Criminal Justice and Police Act 2001, and then subsequently applied for a Closure Order, alleging that the premises were being used for the unauthorised sale of alcohol.

Mr Oates defended these proceedings on the basis that he was entitled to reopen pending his Appeal, and therefore there had been no unauthorised sale of alcohol within the meaning of s21 of the 2001 Act. This meant that the District Judge had to decide the Interim Steps point at the Closure Order hearing.

On the 19th December 2011, District Judge Knight held that the Interim Steps ceased to be effective once the final determination of the Review had been made, noting the relevant section is expressly entitled 'Interim Steps Pending Review'. The District Judge went on to criticise the drafting of the section.

The Judge accepted the licensee's argument that both the Common Law principle against doubtful penalisation and s3 of the Human Rights Act 1998 meant that a statute should not be taken to remove the right of a licensee to trade unless such a deprivation was clearly expressed, and that any ambiguity must be resolved in favour of the licensee. She also accepted that the fact

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that there was no right of appeal against the imposition of the Interim Steps reinforced the argument that such steps were intended to be short lived.

This is a very important decision, and whilst only persuasive due to it being a decision at Magistrates' Court level, flies directly in the face of the DCMS guidance. It means that, in theory, a licence that has been suspended for what are probably quite serious allegations at an Interim stage can reopen following a final Review, even if the licence is revoked at that final Review, pending an Appeal. It also raises interesting questions about the extent to which Interim Steps die at the final Review. If the Interim Step had not been suspension, but the imposition of onerous and expensive conditions (for example extra door staff or CCTV) which the licensee could not afford and therefore in effect meant that he had to shut anyway, do these also die? If the disapplication of Interim Steps is total, then no doubt licensees will be arguing for as early a hearing date of the final Review as possible, in the knowledge that any onerous Interim Steps shall cease to have effect the moment the Licensing Committee reaches its determination.

Given the serious implications of licensees continuing to trade when there is an express decision stating that the premises licence is suspended, we can only hope that this issue will come before the Higher Courts sooner rather than later for clarification. In the meantime, it is a little piece of good news for operators who fear an overreaction by Licensing Committees at the Interim Steps stage.

COUNCILS DELEGATION SCHEME CHALLENGED

Queen (Raphael) v Highbury Corner Magistrates Court and the London Borough of Islington

Licensee sought to challenge a Licensing Committee decision by attacking the council's delegation scheme. Gary Grant, who represented the London Borough of Islington in the Magistrates Court, High Court and Court of Appeal, explains why the Court of Appeal rejected the challenge.

The long-running saga involving Orleans Nightclub in the London Borough of Islington saw the Court of Appeal flex its muscles on 20 April 2011, when it concisely dismissed the nightclub operator’s claim for judicial review and found in favour of the London Borough of Islington.

The story of Queen (Raphael) v Highbury Corner Magistrates Court and the London Borough of Islington [2011] EWCA Civ 462 began in 2008. Orleans was a perfectly ordinary nightclub near Finsbury Park station. It enjoyed a 24-hour Premises Licence granted under the Licensing Act 2003. But over a long period its late opening hours attracted a crowd who seemed to prefer communicating by using their fists rather than their tongues. As a result Orleans experienced an inordinate amount of crime and disorder which greatly troubled the experienced police licensing officers within Islington.

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When informal guidance failed to stem the trouble, the police licensing officer applied – in his own name – for a Review of the Premises Licence under section 51 of the Licensing Act 2003. A local resident was also troubled by the operation of Orleans and lodged a letter supporting the Police’s Review Application. The licensing officer accepted the resident’s complaint as a relevant representation, since it was made by a person living within the vicinity of Orleans and was neither frivolous nor vexatious in the opinion of the licensing officer.

The Review Hearing before the Licensing Sub-Committee was uneventful. The club’s hours were cut back from 24 hours a day to a still late terminal hour of 03:30 hrs. The aggrieved owner of the club, Mr Raphael, appealed to the Magistrates’ Court. In early 2009 his appeal was dismissed on the merits and the decision of Islington’s Licensing Sub-Committee upheld. So far, so good for Islington, but as a result of the reduced hours, Mr Raphael saw his club’s turnover fall. What then for Mr Raphael?

The decision to reduce the hours was quintessentially a factual one and involved an exercise of the judgment. The High Court will not readily interfere with such a decision. So if the factual decision was beyond reproach, only a challenge based on the law was left. The operator’s lawyers cast their gaze to Islington’s “Scheme of Delegation” under the Licensing Act 2003.

As in all organisations one person or indeed body is unlikely to be able do everything, or is even expected to. It just would not be a particularly efficient use of resources if, for example, the Chief Executive of a Council was responsible for personally assessing every complaint a neighbour may make against a pub. Much better that the Chief Executive provides a leadership and overview role and concentrates only on the important and major decisions. Much better too that the task of considering the neighbour’s complaint is delegated down to the appropriate licensing officer who knows exactly what he is doing and has the time and experience to deal with it properly. The Licensing Act 2003 envisages and expressly provides for just such a scheme of delegation to enable the whole licensing regime to operate properly, efficiently and effectively.

In the belief it was acting in accordance with the Licensing Act’s powers of delegation, a meeting of Islington’s full Licensing Committee took place on 26 January 2005. The proposed scheme of delegation was approved. In line with nearly all local authorities, Islington´s Licensing Sub-Committees would, among other things, consider Review Applications. The duty to consider whether representations were “relevant” under the Licensing Act and not frivolous or vexatious was expressly delegated by the full Licensing Committee to the Assistant Director Environment Conservation (Public Protection). The Assistant Director in turn sub-delegated the task to her licensing officers, a sub-delegation that was also later challenged since it had not been made by the Licensing Committee itself.

The dates here are crucial. Because although the Council’s decision to adopt the scheme of delegation took place at a meeting held on 26 January 2005,

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the specific power investing licensing functions in the full Licensing Committee (section 7, Licensing Act 2003) and the additional power of a Licensing Committee to in turn delegate those functions to Sub-Committees (section 10) only came into force some 12 days later on 7 February 2005. On the face of it, Mr Raphael argued, Islington’s Licensing Committee had purported to establish Sub-Committees and delegate functions to those Sub-Committees and licensing officers before they had any legal authority to do so under the Licensing Act 2003.

In other words, it was submitted, since Islington had “jumped the gun” its purported delegation of licensing functions to Sub-Committees and licensing officers was of no effect. Any subsequent decisions made by Islington’s Licensing Sub-Committees, including those involving Orleans nightclub in 2008, were therefore a nullity. Islington, with respect, did not agree.

In launching judicial review proceedings against Islington (and the Magistrates’ Court that heard the appeal), the nightclub sought an order overturning the decision to curtail the club’s hours and also seeking damages for lost revenues. At the oral application for leave the Appellant had also taken the point that since the Review Application was signed merely in the name of “PC Mark Usher” rather than in the name of the Commissioner of Metropolitan Police himself (or on his behalf), PC Usher had no authority to apply for a Review in his own name (the power to do so being invested in the “Chief Officer of Police” by virtue of section 13(4)(a) LA03). On this point the High Court accepted Islington’s submissions that Parliament could not have intended the Commissioner himself to personally sign every Review Application and the Licensing Act must be read as impliedly permitting this task to be delegated to more junior officers (as in fact it had been). Leave on this ground was summarily refused.

In the High Court the full judicial review hearing was heard before HH Judge Mackay QC, sitting as a Deputy High Court Judge – Queen (Raphael) v Highbury Corner Magistrates Court and the London Borough of Islington [2010] EHWC 1502 (Admin). In his judgment the High Court dismissed Mr Raphael’s claim and accepted Islington’s submissions that:

1. Although sections 7 and 10 of the Licensing Act 2003 had not come into force at the time the Licensing Committee approved the scheme of delegation, and despite the fact that the Licensing Committee appeared to incorrectly believe they were exercising powers under that Act, there existed a separate general power under section 101 of the Local Government Act 1972 for functions and powers to be delegated within a local authority. (Note – a subsequent legislative change excluded the application of section 101 to the Licensing Act 2003 but this had no impact on the present case – see Schedule 6, para 58 of Licensing Act 2003 inserting a new sub-section (15) to section 101 Local Government Act 1972).

2. Since the considerations for delegating powers under section 101 of the 1972 Act are in effect no different to those contained within Section 10 of the Licensing Act 2003, it made no difference that the Licensing

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Committee may not have considered the correct statutory source of their power. As of 26 January 2005 (the date of the delegation decision) Islington did in fact have the power to delegate functions albeit under a different Act. Its decision to delegate licensing functions was validated by section 101 whether the Licensing Committee knew it or not.

3. In any event the delegation scheme was repeated and adopted by further decisions of the Licensing Committee in the years after section 10 came into force.

4. In addition, the High Court also accepted Islington’s “fall back” submission that section 13 of the Interpretation Act 1978 would have permitted the local authority to have made the decision under section 10 of the Licensing Act 2003 in anticipation of its commencement 12 days later. Section 13 provides as follows: “Anticipatory Exercise Powers – Where an Act which (or any provision of which) does not come into force immediately on its passing confers power to make subordinate legislation, or to make appointments, give notices, prescribe forms or do any other thing for the purposes of the Act, then, unless the contrary intention appears the power may be exercised, and any instrument made thereunder may be made so as to come into force at any time after the passing of the Act so far as may be necessary or expedient for the purpose- (a) Of bringing the Act or any provision of the Act into force; or (b) Of giving full effect to the Act or any such provision at or after the time when it comes into force.”

The High Court dismissed the judicial review application (with costs to Islington) and upheld the lawfulness of the decision to reduce the club’s hours at the Review Application and the subsequent decision of the Magistrates’ Court on appeal.

In the Court of Appeal the Appellant appealed to the Court of Appeal and was granted leave. The Appeal was heard before Longmore LJ, Etherton LJ and Sir David Keene.

In short, the Court of Appeal held in a judgment published on 20 April 2011 that, regardless of the propriety of the original delegation in 2005, the Council had clearly resolved in each and every subsequent year to establish four Sub-Committees and had properly delegated their licensing functions.

In so far as the contested delegation of authority from the Assistant Director to her licensing officers to consider whether representations are “relevant”, the Court of Appeal also felt able to give a “short answer” to the Appellant’s submission that there had been no valid sub-delegation. Since there was never any suggestion that the resident’s submission was in fact “frivolous or vexatious” and in any event the Sub-Committee itself would not have taken it into account if it was (the role of the licensing officer being akin to that of a filter), there could be no sustainable submission that the Licensing Sub-Committee took into account something which it should not have done even if the submission about the licensing officer’s delegated authority was correct. Moreover even if the licensing officer did not have authority to consider the

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representation the Court would have exercised its “narrow and exceptional discretion” not to quash the decision even if it was shown to be ultra vires. The Court accepted Islington’s submissions that the points raised were of “arid technicality”.

The Court found itself able to resist the temptation to express a view on the remaining arguments involving section 101 LGA 1972 and section 13 Interpretation Act. The decision of the High Court in this regard therefore remains good law.

In argument over costs the Court reiterated the standard principle that costs involved in a Respondent voluntarily attending an oral permission for leave hearing were not generally recoverable unless the Judge specifically awarded those costs.

Postscript: On 19 May 2011 the Applicant sought permission to appeal to the Supreme Court. As of today that application is outstanding.

WALL OF SOUND

Is noise from customers leaving a licensed venue the responsibility of the licence holder or the individual?

In the recent case of Kouttis v London Borough of Enfield (9 September 2011) a District Judge rejected an appellant’s argument that noise from customers leaving a venue was a matter for their individual responsibility and should not have led to a reduction in licensed hours.

A great deal of excitement appears to have been generated by this case and I am already aware of it being referred to in a licensing review hearing.

Before considering the responsibility of the licence holder or the individual it should be noted that Kouttis was a decision handed down in the Magistrates’ Court. Therefore unlike a case decided upon in the High Court this is not binding on anyone else and can therefore only be cited as an example of the approach taken elsewhere. Yes, it may be stated that the case was decided by a District Judge but again all persons familiar with legal decisions in the licensed trade will know that one District Judge will find one way and another on similar facts will find in the exact opposite way!

In Kouttis Trading Standards together with the support of a number of residents applied to remove musical entertainment from the licence of the Willow Public House in Winchmore Hill and reduce its hours due to noise emanation from the premises and public nuisance from customers vacating the premises.

The appellant argued that noise from customers vacating the premises was their individual responsibility and should not have led to a reduction in licensing hours.

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The appellant relied upon Guidance issued under section 182 of the Licensing Act 2003 which makes specific reference to customers in the vicinity of premises in both the context of crime and disorder and public nuisance.

In relation to Crime and Disorder paragraph 2.4 states: “The essential purpose of the licence or certificate in this context is to regulate behaviour on premises and access to them where this relates to licensable activities and the licensing objectives. Conditions attached to licences cannot seek to manage the behaviour of customers once they are beyond the direct management of the licence holder and their staff or agents, but can directly impact on the behaviour of customers on, or in the immediate vicinity of, the premises as they seek to enter or leave.”

This raises the question of what is “the immediate vicinity” and how far does the responsibility of the premises licence holder extend outside the ambit of the licensed premises? These are both questions upon which no further guidance is provided.

The terms “immediate” and “seek to enter or leave” would imply though that the vicinity would be quite small and would not extend to incidents occurring down different streets and roads.

The geographical area is also a factor which no doubt would need to be taken into account, especially in town and city centres were premises are found clustered together within close proximity and sometimes adjacent to one another.

Paragraph 2.4 is also clear that “Conditions attached to licences cannot seek to manage the behaviour of customers once they are beyond the direct management of the licence holder and their staff.”

It would be very difficult to argue that the direct management can be classified as outside the boundary of the premises. Additionally, conditions cannot seek to manage the behaviour of customers thereby emphasising that an individual is accountable in their own right for anti-social behaviour. Further, it could also be argued that it would also be impossible to manage the behaviour of customers outside the direct management of the premises and therefore the inference to be drawn is that if incidents occur outside the ambit of the licensed premises then a premises licence holder is not responsible.

In relation to the prevention of public nuisance paragraph 2.39 states: “Beyond the vicinity of the premises, these are matters for personal responsibility of individuals under the law. An individual who engages in anti-social behaviour is accountable in their own right. However, it would be perfectly reasonable for a licensing authority to impose a condition, following relevant representations, that requires the licence holder or club to place signs at the exits from the building encouraging patrons to be quiet until they leave the area and to respect the rights of people living nearby to a peaceful night.”

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Again, the question of what is “the vicinity of the premises” raises itself above the parapet. The Guidance is quite right in that an individual who engages in anti-social behaviour is accountable in their own right and the police have the requisite powers to deal with those individuals.

The example provided in relation to reasonable action which may be taken by a Licensing Authority against a premises at paragraph 2.39 is only in relation to notices being placed at the exits to the building and does not even go as far as notices outside the premises. Therefore it could be argued that the “vicinity” is very close indeed to the premises, otherwise surely an example or additional example stretching out to the wider geographical area would have been provided?

Under the Licensing Act the only other time in which vicinity is considered is in relation to representations. Paragraph 9.5 of the Guidance states that “In making their decision on the question of vicinity, licensing authorities should consider whether the individual’s residence or business is likely to be affected by disorder and disturbance occurring or potentially occurring on those premises or immediately outside the premises”.

Vicinity was considered in the case of R (on the application of 4 Wins Leisure Limited) v Licensing Committee for Blackpool Council [31 August 2007] EWHC2213 (Admin) were it was held that the question of vicinity was ultimately a matter of fact to be decided by the Licensing Authority. But this of course relates to vicinity in terms of submitting a representation which of course is soon to be abolished. Further, vicinity in this context can also be set by a Local Authority as a fixed distance from a premise and therefore this could be a radius of 100m or maybe more, which at no point could be considered the immediate vicinity of the premises as per paragraphs 2.4 and 2.39 of the Guidance.

Case law under the previous licensing regimes and, in particular with regard to public entertainment licences and special-hours certificates did make findings in relation to incidents occurring both inside and outside a premise.

It must be stressed though that this was under different legislation which has now been superseded and that without binding case law from the High Court a Licensing Authority must have regard to the Guidance issued by the Secretary of State under section 182. The requirement is binding on all Licensing Authorities to that extent. However, as long as Licensing Authorities have properly understood the Guidance, they may depart from it if they have reason to do so as long as they are able to provide full reasons.

In terms of the responsibility of the licence holder it is more likely that the Police Reform and Social Responsibility Act 2011 will have a greater effect upon the “jurisdiction” of a licensee. As well as allowing a Licensing Authority the opportunity to introduce a Late Night Levy whereby Licensing Authorities will be able to impose a charge for premises that have a late alcohol licence and the provision of Early Morning Restriction Orders that will allow Licensing Authorities to restrict sales of alcohol in the whole or a part of their areas

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during hours of their choice between 12am and 6am, it will also increase the powers a Licensing Authority will have to implement conditions which they think are appropriate rather than necessary.

The Act is to amend the evidence test when attaching conditions to a licence by using 'appropriate' rather than 'necessary'. The effect being that the word 'appropriate' will allow decisions to be taken on the grounds of subjective judgment as opposed to the actual facts of a case. 'Appropriate' is also not clearly defined in law whereas 'necessary', although not defined in statute, has been defined by various judgments in the past.

No doubt this will lead to numerous conditions being attached to premises licences and will lead to an influx of challenges before the Courts with the licensed trade again bearing the brunt of any incidents occurring in the night time economy.

So, although Kouttis raises the issue of responsibility in terms of the premises licence holder and the individual outside the licensed premises, it is a non-binding case based on its own facts and any Licensing Authority to whom the case is referred should only attach limited weight to it. It is one case and only provides an example of a decision in a location based on the evidence produced to that Court. Examples to the contrary on vicinity will no doubt be provided to Licensing Sub-Committees and each decision will need to be based on its own merits.

The bigger shake up on this topic will no doubt arise upon the facilitation of the test in relation to “appropriate” as opposed to “necessary”. When the Guidance is issued hopefully the position will become clearer or at least clearer than what is “the immediate vicinity”.

PRIMATE PET OWNERSHIP IN ENGLAND ‘ON THE RISE’ A West Midlands couple who sold a "crippled" pet monkey rather than take it to a vet have been disqualified from keeping animals for life.

The RSPCA, which has called for the keeping of primates as household pets to be banned, says such cases are all too common. Disturbing film footage shows a marmoset named Mikey having difficulty walking on bent legs and being unable to climb.

The film was shown at Dudley Magistrates' Court where the previous owners, both from Stourbridge, were found guilty of causing the animal unnecessary suffering. They have each been ordered to do 300 hours of unpaid work and pay more than £2,700 in costs and compensation.

They had denied knowing there was anything wrong with the four-month-old monkey, which they sold for £650 through a local newspaper advert.

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RSPCA primatologist Lisa Riley said Mikey, who had to be put down, had advanced bone disease and seven fractures. His tail, which is used for balance, was broken.

Marmosets and other popular primates such as Tamarins and Squirrel Monkeys are legally sold through adverts and pet shops as they do not require licences under the Dangerous Wild Animals Act (DWAA). But Dr Riley said they often went to homes where they were typically kept alone in parrot cages or aviaries. Many were without sunlight and proper nutrition, which made metabolic bone disease a common problem. She believes primates should simply not be kept as pets.

The RSPCA has called for a ban on primates being kept as pets for a number of years but says the practice, as well as complaints about their welfare, have increased. The charity Wild Futures believe between 2,485 and 7,454 primates are kept in homes in England but say this is a "conservative estimate".

Between 2001 and 2010, RSPCA inspectors dealt with 315 incidents relating to pet primates, involving 645 animals. "Welfare issues" were identified in 50% of incidents and the charity took legal action in six cases, resulting in convictions in two. Proportionally, complaints about primates were four to 12 times higher than for more common pets. The charity sees "different trends", such as an interest in Meerkats which have appeared in cartoons and recent ad campaigns.

Primates are protected under the Animal Welfare Act and those listed under the DWAA require licences from local authorities. The Department for Environment Food and Rural Affairs (Defra) said it brought in a code of practice for primate keepers in 2010. However animal charities argue Defra's welfare code is "non-binding" and few people know about it. Shropshire MP Mark Pritchard called for a ban on primates as pets in 2008 and the matter will be raised in the Commons again in January 2012.

HSI UK is instead working towards submitting evidence for the review of Defra's welfare code in 2015.

SCRAP METAL DEALERS- WMS

This written Ministerial Statement was laid in the House of Commons on 30 January 2012 by Theresa May, and in the House of Lords by Lord Henley.

Secretary of State for the Home Department (Theresa May): I am announcing today our intention to lay a government amendment to the Legal Aid, Sentencing and Punishment of Offenders Bill to tackle metal theft.

The government considers that legislation is the only sustainable, long-term solution to the growing menace of metal theft. There is an urgent need to make stealing metal less attractive to criminals, and tackling the stolen metal market will act as a significant deterrent.

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That is why I can confirm that we will lay amendments to:

create a new criminal offence to prohibit cash payments to purchase scrap metal

significantly increase the fines for all offences under the existing Scrap Metal Dealers Act 1964 that regulates the scrap metal recycling industry

Cash transactions for scrap metal are often completed without any proof of personal identification or proof that the individual legitimately owns the metal being sold. This leads to anonymous, low-risk transactions for those individuals who steal metal. In addition, the widespread use of cash facilitates poor record keeping by the metal recycling industry and can support tax evasion activity.

The announcement follows the commitment outlined in the national infrastructure plan published in November 2011 when the government announced £5 million to establish a dedicated metal theft taskforce to enhance law enforcement activity in this area.

These amendments are part of our wider attempts to tackle all stages in the illegal trading of stolen scrap metal, and we shall bring forward further measures in due course.

Is Probation an Option for Concluding a Review of a Premises Licence?

Solicitors were recently instructed by a nightclub owner to defend Review proceedings brought against the largest venue in the town where he operated.

The Police had brought the Review against the premises licence due to a high level of crime and anti-social behaviour being attributed to the venue. Shortly prior to the Review being launched a new management team had been put in place at the unit and there was, shortly after the Review was launched, a technical change in the ownership of the unit. No other representations were received during the notice period running up to the hearing for the Review and in meetings between the solicitor and the Police prior to the hearing, the Police held the view that management controls had improved dramatically and there was a commensurate fall in offences relating to the premises. The Police held the view that if this improvement were maintained then they would require no further action for the premises i.e. no additional conditions, removal of licensable activities or reduction of hours that the premises were able to offer licensable activities.

The solicitor, therefore, looked at the possibility of adjourning the proceedings for a period of three months to allow for the operator to in effect be placed on probation to prove that the improved management controls could be maintained.

Counsel for the Police, Senior Solicitor for the authority and myself analysed the legal position. Section 52(2) states that before determining the application

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(for Review), the authority must hold a hearing to consider it and any relevant representations. Sub-Section (4) highlights the sanctions available to the authority, namely –

(a) to modify the conditions of the licence;(b) to exclude a licensable activity from the scope of the licence;(c) to remove the Designated Premises Supervisor;(d) to suspend the licence for a period not exceeding three months;(e) to revoke the licence.

There is nothing further in paragraph 52 which suggests there is no ability to adjourn the proceedings. This compares significantly to the issue with summary expedited reviews which were added to the Licensing Act 2003 by the Violent Crime Reduction Act 2006 and became effective on 1 October 2007.

The wording here at section 53A(2)(b) states that on receipt of such an application the relevant Licensing Authority must –

(a) within 28 days after the day of its receipt, review that licence in accordance with section 53C and reach a determination on that review.

Clearly here the Government has determined that a decision needs to be concluded on the review within 28 days of its launch. This is perhaps due to the fact that these proceedings relate to premises which are associated with serious cases of crime and/or disorder. They, therefore, turned to the Licensing Act 2003 (Hearings) Regulations 2005 and in particular Schedule 1 Regulation 5 dealing with the period of time in which various hearings must be commenced. Number 7 in the table deals with reviews of premises licences and clearly talks about the commencement of the review being "twenty working days beginning with the day after the end of the period during which the representations may be made as prescribed under section 51(3)(c)". It was, therefore, concluded that there was an ability to adjourn the matter as there were no statutory requirements for the review to be concluded, merely commenced within twenty working days of the last date for representations.

The High Court has also looked at the issue of adjourning matters before Licensing Authorities, in the case of the R (on the application of) Murco Petroleum Limited and Bristol City Council.

In this case the application was for a premises licence for a Costcutter store at the Henleaze Service stations. The Licensing Authority sought further information from the applicant and adjourned the application for that information. The High Court made no criticism of the authority making an adjournment for further information. Their only comment being that this should have been to a defined date rather than being adjourned generally.

This being the case all sides agreed that sensible resolution of the review of the nightclub premises licence was to adjourn for three months to a defined date to ensure that the management continued to run the premises in such a

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way as to promote the licensing objectives. The Police asked for liberty to be able to bring the matter back in front of the authority earlier than that defined period if the operator slipped back in his management controls.

There is nothing wrong with looking for inventive solutions to try and deal with a variety of issues, as long as these do not infringe the primary legislation and the measures look to promote the licensing objectives.

A Summary of the Changes to Licensing Laws Proposed in 2012

There are so many changes proposed to licensing legislation in 2012 that will impact on the industry in a number of ways and here is a brief summary of these changes. Coupled with some ongoing issues this summary will allow operators and authorities to remind themselves of the importance of keeping abreast of what is planned and at the same time make arrangements to prepare for these changes. 

1. Live Music Bill to Amend Alcohol Licensing Law

A revised live music bill passed through parliament on Friday 20 January, which subject to final approval will allow smaller music venues with a capacity of 200 or less to host live music without the need to amend the Premises Licence or apply for a Temporary Event Notice.  The proposed changes will also allow acoustic performances to be permitted without the need for any licence or temporary event notice. 

2. Alcohol Minimum Pricing Scotland Bill

The main purpose of the bill is to introduce a minimum price of alcohol below which alcohol must not be sold on licensed premises.  The minimum price will be set according to the strength of the alcohol, the volume of the alcohol and the minimum price per unit. 

The bill was introduced in the Scottish Parliament on the 31 October 2011 and the Health and Support Committee was designated as lead committee in consideration of the bill at stage 1 with a deadline of 9 March 2012 for that stage.  There are a total of three stages for the bill to pass through.  Written evidence and oral evidence submission sessions have been called for with the committee intending to publish its report and the evidence they have received by the end of February 2012.  The bill at this stage does not state the level at which it is proposed that the minimum unit price will be set however the explanatory notes to the bill used 45 pence as an example.

3. Proposed Changes to Temporary Event Notice Legislation

A summary of the proposed changes are as follows:

- Environmental Health Authority can object.- Objections can relate to any licensing objective.- Conditions can be added.- Late notices can be given.

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- Increase in number and duration of events per premises.- Longer objection period.- There will now be standard TEN’s and late TEN’s.- Standard TEN’s are given at least ten working days before the event to the local licensing authority.  - Late TEN’s are given 5-9 working days before the event to the Licensing Authority.- Maximum event period increases from 4-7 days.- Maximum per premises per year increase from 15-21 days.- Police and EHO will have three working days to object to notice.- Earliest commencement date 6 April 2012.

4. Detailed Changes to the Licensing Act 2003

It is well reported that there are to be major changes to the Licensing Act 2003.  This includes the proposed introduction of a Late Night Levy for operators who have late night premises; as well as Early Morning Restriction Orders, which allows Local Authorities to limit the terminal hour of licensed premises within a certain area.

These changes are likely to be implemented in October 2012.  These changes will also see the decisions of Licensing Committees based on what is ‘appropriate’ rather than what is ‘necessary’.  The latter is a significant change, as it has been difficult for Local Authorities to make certain decisions when considering Licensing Applications on the basis that those decisions have to be seen as ‘necessary’ and will also have to be based on evidence.

There is a real difference between finding something is ‘necessary’ as opposed to ‘appropriate’. If a Local Authority decision is based on what is ‘appropriate’ then that is a much more subjective approach and one which can no doubt be clarified more regularly in their reasons.  In practice this will give the Local Authority Licensing Committees freedom in making decisions and potentially make it much more difficult for some licensing applications to be granted even in areas in where there is no cumulative impact zone.

Frank WenzelPrincipal Licensing OfficerEnvironmental and Consumer Protection Services

Tel: 01202 261782

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