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Clause 2: Orders on application to magistrates' court
55. Subsection (1) enables relevant authorities, defined in clause 11 as the chief officer of a police force for a police area, the Chief Constable of the British Transport Police Force and a local authority, to apply to the magistrates' court for the imposition of a DBO on an individual aged at least 16. Subsections (2) and (5) provide that a DBO can be made against an individual if he has engaged in criminal or disorderly conduct while under the influence of alcohol and such an order is necessary to protect relevant persons from further conduct by him of that kind. The criminal or disorderly conduct must have taken place after this section has been brought into force.
56. Subsections (3) and (4) provide that the application for a DBO has to be made by complaint and can only be made after the applicant has consulted the "appropriate persons" specified in clause 11(1).
57. Subsection (5) notes that if the conditions above are satisfied then the magistrates' court may make a drinking banning order against him.
Clause 3: Orders in county court proceedings
58. This clause enables relevant authorities (defined in clause 11) to apply to the county courts in certain circumstances for a drinking banning order against an individual. Subsection (2) allows a relevant authority to apply for an order in the county courts if that authority is already party to the proceedings and believes that it would be reasonable to apply for a DBO against an individual who is also already party to the proceedings. If the relevant authority is not party to such proceedings, subsection (3) allows it to apply to the court to be joined to such proceedings in order to apply for a DBO. The relevant authority can also make an application for an individual to be joined to the proceedings (subsections (4) and (5)) where that individual has engaged in criminal or disorderly conduct whilst under the influence of alcohol, and where that conduct is material in relation to the proceedings. The relevant authority may apply for a DBO when that individual is so joined.
59. Subsection (6) provides that before making such an application, the relevant authority must consult those listed under clause 11.
60. Subsection (7) provides that if it is proved that the conditions set out in subsection 2(2) have been met - that the individual has engaged in criminal or disorderly conduct while under the influence of alcohol - and that a DBO is necessary to protect relevant persons from further such conduct by the individual and that his criminal or disorderly conduct while under the influence of alcohol is material behaviour in relation to the proceedings, the court may make a DBO against him.
Clause 4: Variation or discharge of orders under sections 2 or 3
61. Subsection (1) provides for the variation and discharge of orders made in the magistrates' court on complaint and in county court proceedings. Subsection (2) provides that an application to the court for variation or discharge of the order may be made by the person subject to the order or the relevant authority on whose application the order was made. Subsection (3) provides that an order made by a magistrates' court under clause 2 can be varied or discharged by any other magistrates' court acting in the same local justice area.
62. Subsections (4) and (5) provide that an application to vary or discharge the order has to be made by complaint and that the order may not be varied so as to extend the period for which the order has effect to more than two years. Subsection (6) provides that the order may not be discharged before the end of the period which is half the duration of its length, unless consent is given by the relevant authority.
Clause 5: Orders on conviction in criminal proceedings
63. Subsections (1), (2) and (3) provide that the court may make a DBO against an offender following criminal proceedings, where that offender is aged at least 16 and was under the influence of alcohol when committing the offence, and the court is satisfied that the conditions set out in clause 2(2) apply. Subsection (4) notes that if the court decides that the conditions are satisfied but it decides not to make a DBO, it must give the reasons for not doing so in open court. Subsection (5) requires the court to state in open court if it decides that the conditions in clause 2(2) are not satisfied, and give its reasons.
Clause 6: Supplementary provision about orders on conviction
64. Subsections (1) and (2) provide that on deciding whether to make a DBO following a conviction in criminal proceedings the court may consider evidence led by the prosecution and evidence led by the defence. Subsection (2) provides that it is immaterial whether the evidence would have been admissible in the proceedings in which the offender was convicted.
65. Subsection (3) provides that a DBO made following a conviction must not be made except in addition to a sentence or in addition to an order discharging the offender conditionally.
66. Subsection (4) provides that the court may adjourn any proceedings in relation to a DBO made following a conviction after sentencing the offender. Subsection (5) provides that if the offender does not appear for any adjourned proceedings, the court may further adjourn the proceedings or may issue a warrant for his arrest. Subsection (6) provides that the court may not issue a warrant for the offender's arrest unless it is satisfied that he has had adequate notice of the time and place of the adjourned proceedings.
67. Subsection (7) provides that a DBO takes effect on the day in which it is made, or the day on which he is released from custody.
68. Subsection (9) provides that in proceedings brought against a young person (16 to 18 year old) a court will not be bound by section 49 of the Children and Young Persons Act 1933, and will not have automatically to impose reporting restrictions. However, it states that the court will retain discretion to apply reporting restrictions under section 39 of that Act.
69. Subsection (10) amends the Prosecution of Offences Act 1985 to include in the functions of the Director of Public Prosecutions the ability to apply for a DBO.
Clause 7: Variation or discharge of orders under section 5
70. Subsection (1) provides for the variation and discharge of a DBO made following a conviction. The subject of the DBO, the Director of Public Prosecutions, or a relevant authority, may apply for variation or discharge. Subsection (2) provides that a relevant authority may only make such an application if it considers that the protection of relevant persons from criminal or disorderly behaviour by the subject would be more appropriately effected by a variation of the order. A relevant authority may make an application to the court to discharge the DBO if it is no longer necessary to protect relevant persons from his conduct.
71. Subsection (3) provides that if the subject makes an application for variation or discharge he must send notice of his application to the Director of Public Prosecutions. Subsection (4) obliges the Director of Public Prosecutions or relevant authority to send notice of an application to vary or discharge to the subject of the DBO.
72. Subsection (6) prevents a DBO from being varied to extend its duration to over 2 years. Subsection (7) provides that the order may not be discharged before the end of the period which is half the duration of the DBO, or without the consent of the Director of Public Prosecutions, if earlier.
73. Subsection (8) amends the Prosecution of Offences Act 1985 to include in the functions of the Director of Public Prosecutions the ability to apply for variation or discharge of DBOs.
Clause 8: Interim Orders
74. This clause enables the court to make an interim order when an application is made for a DBO under clause 2 or 3 or where the court is considering making a DBO on criminal conviction under clause 5. The court can make an interim order if it thinks it is just to do so.
75. Subsections (3) and (4) enable an interim order to be applied for without notice being given to the defendant when the permission of the court (where the full proceedings are before the Crown Court or the county court) or the permission of the justices' clerk (where the full proceedings are before a magistrates' court) has been given.
76. Subsection (5) specifies that permission for an application for an interim order without notice may only be given where the court or clerk is satisfied it is necessary for the application to be made without the individual concerned receiving notice.
77. Subsection (6)(a) enables an interim order to contain any provision that could be in a full DBO. Subsection (6)(b) limits its duration, unless renewed, to the time specified in the order, which may not exceed 4 weeks.
78. Subsection (7)(a) provides that an interim order may be renewed once or more but not for longer than 4 weeks from the time it would otherwise have expired. Subsection (7)(b) provides it must in any event cease to have effect on the court's decision on whether or not to make a DBO.
79. Subsections (8) and (9) provide for applications for variation or discharge of an interim order that are made on application to the magistrates' court, in county court proceedings and on conviction in criminal proceedings. However, the provision that prevents a full DBO from being extended beyond 2 years does not apply as interim orders are subject to a shorter renewable 4 week limit.
Clause 9: Appeals
80. This clause provides that an appeal against the making of a DBO in the magistrates' courts is to the Crown Court.
81. Subsection (2) provides that the Crown Court may make such orders as may be necessary and may also make such incidental or consequential orders as appear to it to be just. Subsection (3) provides that an order of the Crown Court made on an appeal shall be treated for the purposes of the provisions relating to variation and discharge of orders (clauses 4 and 7) as an order of the magistrates' court from which the appeal was brought.
Clause 10: Breach of drinking banning orders
82. This clause provides that a breach of a DBO without reasonable excuse is an offence. Subsection (2) provides that someone found guilty on summary conviction is liable to imprisonment for a term not exceeding 51 weeks or to a fine not exceeding level 4 or both. Subsection (3) provides that the term of imprisonment of 51 weeks should be read as "3 months" until section 281(5) of the Criminal Justice Act 2003 comes into force. Subsection (4) provides that a conditional discharge cannot be made in relation to the breach of a DBO.
83. Subsection (5) enables a local authority to bring proceedings for breach of a DBO, and (6) gives the Secretary of State the power to provide by order that further persons may bring proceedings for breach of a DBO.
84. Subsection (7) provides that in proceedings for breach of a DBO, a copy of the DBO or interim order is admissible as evidence of its having been made and its contents to the same extent as oral evidence of those things is admissible in those proceedings.
85. Subsection (8) provides that when proceedings for a breach of a DBO are brought in a youth court, a person authorised by a relevant authority is entitled to be present. Subsection (9) provides that in relation to proceedings brought against a young person for a breach of a DBO, a court will not be bound by automatic reporting restrictions as set out in section 49 of the Children and Young Persons Act 1933. However, the court will retain discretion to apply restrictions under section 45 of the Youth Justice and Criminal Evidence Act 1999.
86. Subsection (10) provides that if the court does exercise its power to give a direction imposing prohibitions on reporting information on identification of witnesses, complainants or defendants under the age of 18 then it must give its reasons for doing so.
Clause 11 - Interpretation
87. This clause sets out definitions for the purposes of clauses 1 to 10. Subsection (2) explains that protecting persons from criminal or disorderly conduct includes references to protecting their property from unlawful loss or damage. A drinking banning order could therefore be made where such an order is necessary to protect property.
Chapter 2: Alcohol disorder zones
Clause 12: Power to impose charges on licence holders etc. in zones
88. This Clause gives local authorities a new power to impose charges on the holders of premises licences which authorise the use of premises for the sale by way of retail of alcohol and the holders of club premises certificates which permit the club to supply alcohol to members or guests. Subsection (1) enables the Secretary of State to make regulations setting out the detail of these charges which will be payable monthly.
89. Subsection (2) provides that the regulations may require or authorise the local authority to use the revenue from these charges for the purposes specified in the regulations. The charges are likely to cover the costs of initiatives to tackle the problem over and above the normal level of public services. The costs might include extra policing costs, bus or taxi marshals, publicity raising awareness about the dangers of drinking too much, or extra enforcement activity.
90. Subsection (3) explains that the regulations may include the need for the local authority and police authority to agree between them what proportion of the revenue from the charge should be paid to the police authority for the extra policing costs incurred in tackling alcohol-related violence and disorder in the locality. In the absence of any agreement, the matter will be determined by the Secretary of State.
91. Subsection (4) requires the Secretary of State to set the charging rate at a level which he considers appropriate to cover the purposes specified in the regulations under Subsection (2), and the administration costs of running the scheme.
92. Subsection (5) enables the Secretary of State to set different charging rates in the regulations. There may be different rates for different types of local authority area (e.g. large urban centre vs. rural area with one small market town), different types of alcohol disorder zones (e.g. the number of premises within the boundaries of the zone) and different premises types (e.g. those which close before a certain time of night). The rates may be set out in the regulations or the regulations may simply prescribe the mechanisms for working out the different rates.
93. Subsection (6) enables the regulations to authorise or require a local authority to grant discounts from the charges. These discounts may, for example, be offered to premises which close before midnight. They may also be offered to premises which are accredited under a scheme such as the Best Bar None scheme, which rewards good operating practice. Regulations must provide for certain premises to be exempt from the charges. These exemptions are specified in subsection (7), and are limited to premises where the following two conditions are both satisfied:
94. The purpose of subsection (7) is to ensure that premises such as restaurants, cinemas and gyms, which do not significantly contribute to the problems of alcohol-related violence and disorder, do not have to pay the charge.
95. Subsection (8) ensures that discounts or exemptions can be limited to premises complying with conditions which are set out in the regulations or specified by the local authority in accordance with the regulations.
96. Subsection (9) enables the regulations to make provision about payment, collection and enforcement of the charges, determination of liability to pay the charges and appeals.
97. Subsection (10) enables the regulations to include a provision for the suspension of the premises licence or club premises certificate if the charge is not paid.
98. Subsection (11) explains that the reference to the administration costs in subsection (4) is a reference to the cost of arrangements for imposing, collecting and recovering the charges.
Clause 13: Designation of alcohol disorder zones
99. Subsection (1) gives local authorities the power to designate a locality within their area as an alcohol disorder zone if the conditions specified in paragraphs (a) to (d) are satisfied.
100. Subsections (2) and (3) state that a local authority intending to designate an area as an alcohol disorder zone must publish a notice setting out their proposals and invite representations within 28 days about the proposal and about what might be included in an action plan to tackle the problem.
101. Following receipt of representations, subsection (4) requires the local authority and the local chief officer of police to publish an action plan which sets out the steps that would make the designation unnecessary. The action plan must also be sent to those who would be liable to pay the charge if the area was to be designated. The content of the plan will vary between different areas but must include details of proposed action by the local authority and the police. As an example, the proposed alcohol disorder zone may be in an area where there is a need to raise operating standards in pubs and clubs within the zone. In this case, the action plan might contain things like a requirement for pubs and clubs to display information about their proof of age policy. In a different scenario, the proposed alcohol disorder zone might be in an area where the pubs and clubs are quite well run but there is a lack of late-night transport, and the taxi rank is poorly lit and the scene of a lot of trouble. Here the action plan might require premises to fund extra transport provision, and provide some door staff for an extra hour after closing time to police the taxi rank.
102. Subsection (8) allows the local authority to designate the alcohol disorder zone if, and only if:
8 weeks have passed, beginning with the day after the action plan has been published, and the local authority does not consider that the trade have made substantial progress towards implementing the plan; or
Clause 14: Procedure for designation of zones
103. Clause 14 provides further details of the procedure for the designation of zones. The procedure may be supplemented by regulations made by statutory instrument. Subsections (4) and (5) provide for the review of zones every three months. A designation of a locality as an alcohol disorder zone can be revoked at any time.
Clause 15: Functions of local chief officer of police
104. Subsection (1) imposes a duty on the local authority to consider proposing the designation of an alcohol disorder zone if the local chief officer of police suggests that they do so.
105. If in such a case the local authority decides against proposing the designation of a zone, subsection (2) requires them to give notice of their decision, setting out the reasons, to the local chief officer of police and to the Secretary of State.
106. Subsection (3) requires a local authority proposing to designate a locality as an alcohol disorder zone without an application from the chief officer of police to consult the chief officer before publishing notice of their proposal.
107. Subsection (4) requires local authorities to obtain the consent of the chief officer of police before designating an alcohol disorder zone or revoking it.
108. If the chief officer of police does not give this consent, then subsection (5) requires him to give notice of his decision and the reasons for it to the Secretary of State.
Clause 16: Guidance about the designation of zones
109. Clause 16 requires the Secretary of State to issue guidance about the exercise of powers in relation to alcohol disorder zones. The guidance should set out alternative steps which should be considered before an area is designated as an alcohol disorder zone. Before issuing or revising guidance the Secretary of State must consult those persons set out in subsection (3).
Clause 17: Supplemental provisions for Chapter 2
110. Clause 17 defines a number of terms used in clauses 12 to 16.
Chapter 3: Other provisions
Clause 18: Power of police to require review of premises licence
111. Clause 18 inserts new sections 53A, 53B and 53C into the Licensing Act 2003. The aim of this provision is to supplement the existing provisions in the Act which provide for conditions to be attached to licences.
112. Subsection 53A(1) enables a chief officer to apply for an expedited review of a premises licence where a senior police officer (of or above the rank of superintendent) certifies, to the relevant licensing authority, that he considers any licensed premises to be associated with serious crime and/or disorder.
113. Subsection 53A(2) requires the licensing authority, (i) within 48 hours of receipt of the certificate to consider whether it is necessary to take any of interim steps set out at section 53B(3) pending a determination of a review of the premises licence, and (ii) within 28 days after receipt of the certificate to review the premises licence and reach a determination.
114. Subsection 53A(3) provides that the Secretary of State must by regulations prescribe the procedure by which the licensing authority should conduct the review.
115. Subsection 53A(4) defines a senior police officer as being of or above the rank of superintendent. It also defines serious crime by reference to section 81 of the Regulation of Investigatory Powers Act 2000: broadly those crimes for which a sentence of imprisonment of at least three years could be imposed and offences involving violence.
116. Subsection 53A(5) provides that weekends and public holidays are not counted when calculating the 48 hours mentioned above.
117. Section 53B deals with the taking of interim steps by the relevant licensing authority pending determination of the review.
118. Subsection 53B(2) enables the relevant licensing authority to take any of the interim steps set out at subsection (3) without the licence holder having an opportunity to make representations. Subsection 53B(3) lists the interim steps that the relevant licensing authority must consider taking which include (a) modification of the conditions of the premises licence, (b) exclusion of the sale of alcohol by retail from the scope of the licence, (c) the removal of the designated premises supervisor from the licence, or (d) suspending the licence. Subsection 53B(4) provides that the conditions of a premises licence are modified when any of them are altered or changed or any new condition is added. A licensing authority can take one or more of the interim steps pending the review of the premises licence.
119. Subsection 53B(5) provides that any decision by the licensing authority to take an interim step or steps will take effect either immediately or at a later time specified by the authority. Notice of the decision must be given to the holder of the premises licence and the police.
120. Subsection 53B(6) provides that if the licence holder makes representations, that are not withdrawn, the licensing authority must within 48 hours of receiving them (not counting weekends and other public holidays) hold a hearing to consider them. Advance notice of the hearing must be given to the holder of the premises licence and the police.
121. Subsection 53B(8) requires the licensing authority to consider at the hearing whether the interim steps are necessary and to decide whether they should be withdrawn or modified. Subsection 53B(9) requires the licensing authority to have regard at any hearing to the police officer's certificate, any representations made by the police and any relevant representations made by the holder of the premises licence.
122. Section 53C deals with the procedure for conducting the determination of an application for a review made under section 53A.
123. By virtue of this section, the licensing authority must hold a hearing to consider and determine any application for review and any relevant representations made in respect of it. In order for representations to be 'relevant' they must have been made by the holder of the premises licence, an interested party or a responsible authority (see the definitions in section 13 of the Licensing Act 2003) and they must relate to the licensing objectives. If the representations are made by an interested party there is a further requirement that the licensing authority does not consider them to be frivolous or vexatious. If it does, the authority is to explain its decision to the person who made the representations. The section provides that as a result of this review the authority must, if it considers it necessary for the promotion of the licensing objectives, either modify the conditions of the licence, exclude a licensable activity which the premises licence covers, remove the designated supervisor, suspend the licence for a period not exceeding 3 months or revoke the licence. If the licensing authority does not consider any of the steps to be necessary for the promotion of the licensing objectives, it will leave the licence untouched.
124. Subsection 53C(10) requires the licensing authority to notify the outcome of a review and its reasons for so deciding to the licence holder, the applicant, the police and any person who has made relevant representations. Subsection 53C(11) provides that the determination of an application for review will not take effect until any appeal has been disposed of, or if there is no appeal at the end of the period within which an appeal may be brought.
|© Parliamentary copyright 2005
|Prepared: 15 June 2005