Letter from Liquor, Gambling and Data
Protection Unit, Home Office
Thank you for your letter setting out further points
raised by the Committee about the revocation of special hours
certificates and the necessary protections for local residents
from noise and disturbance on Sunday nights and Monday mornings.
2. As your letter demonstrates, the inter-relationship
between the various statutory controls over liquor and public
entertainment licensing is important to the consideration of the
issue of public protection. To answer the Committee's questions,
it is necessary to explain these complex inter-relationships at
some length.
Grant and renewal
3. To qualify for a special hours certificate
at a licensed premises where dancing will take place an applicant
must already possess an "on-licence" issued by the licensing
justices (renewable every three years) and a public entertainment
licence issued by the local authority (renewable every twelve
months or less). The Licensing (Special Hours Certificates) Rules
1982[35]
(S.I. 1982 No. 1384), made under Section 91 of the Licensing
Act 1964, govern the arrangements for grant and revocation of
special hours certificates. Rule 3(1) - (1A) provides for the
display and advertising of the application to people residing
in the locality. Rule 3A provides for any person to lay
grounds objecting to the grant of a new certificate or any variation
of an existing one.
4. The Licensing Act 1964 is silent as to what
matters might properly be taken into account when considering
the grant of or imposition of limitations on the certificate.
The discretion of the licensing justices to consider and to take
account of these objections is therefore essentially unfettered.
In considering the exercise of this discretion, the higher courts
have provided guidance in the form of case law and precedent.
This has consistently confirmed that it is entirely proper for
the licensing justices to take into account the risk of public
disorder, or disturbance of or annoyance to residents in the neighbourhood
of the premises.[36]
5. Notwithstanding these arrangements, which
go to the issue of disturbance and annoyance to local residents,
and which would extend to Sunday if the Order is made, the Government
proposes that the Deregulation (Sunday Dancing and Licensing)
Order 2000 should additionally provide an explicit requirement
for the licensing justices to consider the "special nature
of Sunday".
6. As to the issue of Guidance on the special
nature of Sunday, it should be noted that it has been the longstanding
view of successive Governments that it would be improper for the
Executive to seek in any way to fetter or influence the judiciary
in the exercise of their discretion. The Government's position
is that there is no general or national interpretation to be applied,
and any guidance should therefore do no more than emphasise the
importance of the matter to be taken account of on the basis of
local circumstances and conditions on a case by case basis. The
interpretation of the words in the Order will remain a matter
to be determined by the courts. It would be open to the Magistrates'
Association and the Justice Clerks' Society to consider whether
any further guidance would be helpful to magistrates, and if so,
to issue it. They currently produce a Good Practice Guide
in respect of the liquor licensing laws. Such guidance cannot,
of course, bind the courts but has led to more consistent and
less arbitrary decision-making in recent years.
7. There is no procedure in law for the renewal
of a special hours certificate. However, if either the justices'
on-licence or the local authority public entertainment licence
cease to have validity (owing to non-renewal or revocation) the
special hours certificate would also automatically be invalidated.
This means that the procedures relating to these licenses are
relevant considerations. It is important to note that within any
period of twelve months, the local authority would necessarily
be obliged to review any public entertainment licence.
8. It is open to the local authority to prescribe
any terms, conditions or restrictions on the grant or renewal
of a public entertainment licence[37].
The local authority's discretion to impose such terms, conditions
and restrictions is again unfettered. In practice, local authorities
inside and outside Greater London exercise their discretion to
impose conditions robustly for the purposes of preventing crime
and disorder, assuring public safety and preventing public nuisance
and disturbance. So, for example, in certain circumstances, some
local authorities attach conditions to a public entertainment
licence which involve prescribed noise levels (measured in decibels
etc) and require adequate levels of sound proofing. It is a criminal
offence to breach these conditions and conviction can lead to
revocation of the licence (at which point, the special hours certificate
would become invalid too).
Revocation
9. We have carefully considered the Committee's
suggestion of creating special arrangements in respect of Sundays
that would allow any person to seek revocation of a special hours
certificate. However, we do not think it is necessary to depart
from the existing statutory scheme in order to achieve the end
the Committee have in mind. In all cases involving dancing at
on-licensed premises conditions, limitations and restrictions
relating to the justices' on-licence, the local authority's public
entertainment licence and the special hours certificate will be
in force. In the case of the public entertainment licence, which
is most likely to have given rise to a condition on acceptable
noise levels, the offence of breaching the condition would be
punishable by a fine of up to £20,000 or up to six months
imprisonment or both. The prosecuting authority in respect of
breaches of the public entertainment licence conditions is the
local authority. Local residents are free to bring such breaches
to the attention of the local authority which can use information
from any source to form the basis of a prosecution. Any complaints
by local residents about noise disturbance should therefore be
channelled to the local authority who would have to decide whether
to pursue an investigation and possible prosecution, and to the
police who may wish to consider prosecution in respect of the
special hours certificate and to seek revocation of the certificate.
With regard to the public entertainment licence, conviction following
prosecution can lead to revocation of that licence.
10. In view of the criminal nature of breaches
of conditions and restrictions, our view is that the police (in
respect of the special hours certificate) and the local authority
(in respect of the public entertainment licence) are best placed
to consider the evidence involved, to investigate further if necessary,
and to decide appropriate action. For example, many complainants
would not have the knowledge or resources to develop an evidentiary
basis sufficient to support a case for revocation (in respect
of the special hours certificate) before the courts; or to support
a case for the prosecution (in respect of the public entertainment
licence). In addition, any individual complainant would not necessarily
know how many other complainants in an area were concerned about
excessive noise levels or disorderly behaviour by customers leaving
a club. But these matters would go to issues of evidence and corroboration.
11. Where evidence is not of sufficient substance
to justify criminal proceedings in respect of the main licences,
it is open to the police to seek revocation of the special hours
certificate itself or to seek a limitation on the operation of
the certificate. In the Deregulation (Sunday Dancing and Licensing)
Order 2000, the Government is proposing additionally that the
police be enabled to seek a limitation excluding Sundays on the
grounds that it is desirable to avoid or reduce disturbance or
annoyance on Sundays to people living or working in the vicinity
or to prevent disorderly conduct. In such circumstances, the police
would still need to decide first if any breach of the licensing
laws had occurred that justified an investigation and/or prosecution.
12. We still therefore consider that the police
and the local authority are the proper conduit for complaints
made by local residents in respect of the operation of the special
hours certificate and the public entertainment licence. Indeed,
we consider it essential that local residents do bring details
of breaches of conditions to the attention of both the police
and the local authority. We also consider that the inter-related
scheme involving liquor and public entertainment licensing provides
necessary protections for Sundays and other days that are both
comprehensive and robust.
Inside and Outside Greater London
13. In respect of public entertainment licenses,
the only part of Schedule 1 of the Local Government (Miscellaneous
Provisions) Act 1982 (mentioned in your letter of 16 February)
which makes explicit and direct reference to the purpose of preventing
persons in the neighbourhood being unreasonably disturbed by noise,
concerns public musical entertainment conducted in the open air
and on private land. An example might be a "rave" held
in a farmer's field. In London, the courts ruled a long time ago
that an open space constitutes "premises" for the purpose
of the London Government Act 1963 and is covered by the normal
provisions relating to public entertainment licences which I have
discussed above. The provisions for protecting the public from
the impact of public entertainment are comprehensive both inside
and outside London. Indeed, contrary to the view the Committee
had formed, it is generally agreed by legal practitioners that
the laws governing public entertainment licences are equally effective
in London and many suggest that they are more rigorously enforced
there than elsewhere.
Scotland
14. As I hope I have been able to explain above,
the position under the law of England and Wales is that any person
may raise objections to the grant of a special hours certificate
on the grounds that it would cause undue nuisance, disturbance
or annoyance to local residents. The processes which operate in
Scotland therefore provide for no greater degree of local knowledge
or consent to be available to the licensing authority than that
which is available to the licensing justices in England and Wales.
The key difference in Scotland is that the decision-making authority
in respect of liquor licensing is a local board comprising local
councillors who are arguable more directly accountable to the
local electorate whose lives are fundamentally affected by the
decisions taken. The issue of accountability of the licensing
authority to local residents is one of the Government is considering
in the wider context of the reform and modernisation of the liquor
and public entertainment laws generally.
Guidance in respect of public entertainment licensing
15. You asked if the Secretary of State ever
used his powers to issue guidance to local authorities in the
context of public entertainment licensing. The Secretary of State
does from time to time issue such guidance but it tends to focus
on technical advice. For example, in 1990 in conjunction with
the Scottish Office, the Home Office published a Guide to Fire
Precautions in Existing Places of Entertainment and Like Premises;
and in 1993 in conjunction with the Health and Safety Executive
and the Scottish Office, the Home Office published a Guide
to Health, Safety and Welfare at Pop Concerts and Similar Events.
The Home Office could use these powers as a means of issuing guidance
on noise disturbance in the public entertainment context. However,
so far as we are aware, local authorities are rigorous in exercising
their existing powers to place conditions on public entertainment
licenses relating to noise. The Secretary of State perceives no
current need to issue guidance on this issue himself. The Committee
may find it helpful to know that the Institute of Acoustics working
closely with local authorities has prepared a draft Code of Practice
on the Control of Noise from Pubs and Clubs on which it is currently
consulting. This will contain technical advice on the impact of
noise on workers in pubs and clubs, customers and on the local
environment.
23 February 2000
35 As amended by the Licensing (Special Hours Certificates)
(Amendment) Rules 1988, S.I. 1988 No. 1338 and the Licensing (Special
Hours Certificates) (Amendment) Rules 1996, S.I. 1996 No. 978. Back
36
See, for example, Lidster v Owen [1983] 1 All ER 1012, [1983]
1 WLR 516. Back
37
See paragraph 9(1) of Schedule 12 to the London Government Act
1963 and paragraph 11(1) of Schedule 1 to the Local Govt (Misc.
Provisions) Act 1982. Back
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