Memorandum submitted by the Magistrates'
Association
BACKGROUND
The Magistrates' Association has a membership
of some 28,000 representing the vast majority of sitting magistrates
throughout England and Wales.
Under the 2003 Licensing Act, local authorities
became responsible for all alcohol and entertainment licences,
along with licences for the sale of hot food after 2300 hours.
However, the Magistrates' Courts remain as the
appeal court for all those who disagree with decisions made by
local council licensing committees.
Magistrates' Courts have powers to grant closure
notices for licensed premises at the request of a senior police
officer.
Magistrates' Courts also have responsibilities
for dealing with holders of Personal Licences who commit any one
of a range of offences.
Magistrates' Courts also deal with those who
commit offences under the Act and see, on a day to day basis,
the consequences of over-indulgence in alcohol, whether it results
in stranger on stranger violence, domestic abuse or drink driving.
OUR SPECIFIC
CONCERNS
Although the Act itself has provided little
work for the courts, there are some issues that the Association
would like to bring to the attention of the Committee. (There
were some 569 appeals between April 2006 and March 2007 Source:
http://www.dcms.gov.uk/reference_library/research_and_statistics/4865.aspx)
Costs of Appeals
The new drive within government towards full
cost recovery has increased the cost of appeals under the Act.
At present, individuals appealing a decision of a licensing authority
pay a protected lower fee rate. The Association believes that
this is an important right that should be enshrined in law.
Joining of residents to appeals by licence holders
At present, there is no statute power to allow
local residents who have campaigned against either the granting
of a new licence, the extension of an existing licence or indeed
for a review of a licence to be heard on appeal if the licensing
authority refuses or alters all or part of the licence request
at first instance. On appeal, the licensing authority is not required
to present the views of residents, although it may do so if it
wishes. The Association is aware that various courts have taken
different views about whether or not to allow residents to present
their views at appeal hearings where an applicant has appealed.
The statute, at Schedule 5, does not deal with this issue.
The Association believes that, in the interests
of fairness, it should be made clear by parliament whether anyone
raising an objection at first instance may be heard on appeal
in addition to the licensing authority where the authority has
turned down the licence request, whether on these grounds or on
other grounds. This would bring licensing appeals more in line
with planning appeals. However, as the former are judicial in
nature and the latter administrative, there might be a need for
legislation.
National Register of Personal Licence Holders
Premises selling alcohol must normally be under
the direction of a designated premises supervisor, who must be
an accredited Personal Licence Holder. These licences are valid
for 10 years and are issued by the authority where the person
is living at the time they wish to apply for a licence. Although
each authority holds its own register, there is no central register.
The absence of such a central database makes it impossible for
the police to check whether anyone arrested for an offence listed
in Schedule 4 of the Act is in fact a personal licence holder
without checking with every local licensing authority. As one
of the four licensing objectives is "the prevention of children
from harm", the creation of a national register would further
this particular licensing objective.
Only 11 personal licences were revoked between
April 2006 and March 2007. A further 13 were suspended; 13 forfeited
and 192 surrendered, according to DCMS figures. This is just 229
out of 59,000 licences granted—0.38%. Only 435 requests
for licences were refused—61% of these by just five local
authorities (Hackney, 20; Leicester, 20; Pembroke, 28; Torfaen,
73; Slough, 128). There were just 286 police objections to personal
licence requests. Source: http://www.dcms.gov.uk/reference_library/research_and_statistics/4865.aspx
It is a curious outcome of the regulatory process
that door supervisors, often under the control of personal licences
holders, are nationally registered by the Securities Industry
Authority and have to re-register on a more frequent basis than
do personal licence holders under the 2003 Licensing Act. It might
be worth considering whether the licensing of premises should
remain with local authorities but personal licences should either
be transferred to the SIA or a new national regulatory body.
OTHER ISSUES
Temporary Event Notices
Although the courts are not usually involved
in the process of granting such notices, the Association is aware
that a number of possible loopholes exist that make it difficult
to prevent the granting of such notices. Specifically, only the
area of the "sale" of alcohol needs to be specified
allowing premises to be used more frequently than envisaged in
the Act. The time limit for police objections is very limited
if a TEN is lodged with the police late on a Friday afternoon.
Although reputable applicants will usually provide more time,
the time limits in the act can provide the possibility for abuse
and might be re-considered to see whether they provide sufficient
time in all cases to ensure the police can meet the prevention
of crime and disorder objective.
During the period April 2006 to March 2007,
some 101,083 TENs were granted. There were 175 cases where the
police objected, and 164 requests were refused. 254 TENs were
not granted because limits had been exceeded.
Use of Fixed Penalty and PND notices
The Association remains concerned that some
violence involving alcohol is dealt with by means of a fixed penalty
notice or penalty notice for disorder. The Association believes
that all crimes involving violence, even when no lasting injury
results, should be dealt with before a court. One reason is that
ancillary orders, such as a ban on entering licensed premises,
can be ordered by a court, but not as part of a fixed penalty.
Such penalties may also have a lower collection rate than for
court fines.
Drink driving
The consumption of alcohol before driving a
motor vehicle remains a key concern for the Association. In many
people's minds this is still regarded as a problem of the festive
season. However, it is undoubtedly a problem throughout the year.
Many drivers are still unaware of the relatively small amount
of alcohol they need to consume to become over the limit. We welcome
the proposed moves to increase awareness and responsible drinking.
Many of those who appear in front of magistrates for this offence
have never been before a court for any other matter.
Under-age drinking
Young people are particularly vulnerable to
both the short term and the long term effects of alcoholic intoxication.
Considerable attention has been paid to this issue and some of
the actions, such as the "two strikes and you are out"
principle, have been noted above. No doubt the DCMS has a role
to play in working with other government departments on this issue.
The more general issue of violence and disorder
and the part played by alcohol
The Magistrates' Association is aware of the
British Crime Survey findings that violent crime has been reducing
since the peak reached in the late 1990s. DCMS has also recently
published research into the effects of the 2003 Act. We note the
following parliamentary answer given in the House of Commons in
June this year by Home Office minister Vernon Coaker that sums
up the evidence:
Alcoholic Drinks: Crime Prevention
The Home Office conducted an assessment of the
impact of the Licensing Act 2003 on levels of crime and disorder.
A report: The impact of the Licensing Act 2003 on levels of crime
and disorder: an evaluation (2008) by Hough et al was published
early this year.
The main conclusion to be drawn from the evaluation
is that licensing regimes may be one factor in effecting change
to the country's drinking culture—and its impact on crime—but
they do not appear to be the critical factor. The overall volume
of incidents of crime and disorder remains unchanged, though there
were signs that crimes involving serious violence may have reduced.
There was, however, evidence of temporal displacement, in that
the small proportion of violent crime occurring in the small hours
of the morning had increased.
In surveys, local residents were less likely
to say that drunk and rowdy behaviour was a problem after the
change than before it, and the majority thought that alcohol-related
crime was stable or declining. Police, local authorities and licensees
generally welcomed the Act and the new powers it gave them once
implementation teething problems were solved. In general they
did not think that alcohol related crime had got worse.
In July 2007 the Home Office published findings
from an analysis of data collected from a self-selecting sample
of police forces (Violent crime, disorder and criminal damage
since the introduction of the Licensing Act (2007) Babb et
al).
The key finding from this study was when comparing
the 12-months before and after the implementation of the Licensing
Act 2003, there was a 1% fall in recorded incidents involving
violence, criminal damage and harassment; and a 5% fall in serious
violence. The findings also showed the timing of offence had changed;
with a 1% increase in offences occurring between 6.00 pm and 6.00
am, and a steep rise in the small minority of offences occurring
in the small hours between 3.00 am and 6.00 am—an increase
which was large in proportional terms (25%) but relatively small
with regards to the number of incidents (236).
The evaluation of a multi-agency approach to
tackle violence and disorder in the night-time economy was assessed
in the Reducing alcohol-related violence and disorder: an evaluation
of the TASC (2003) Macquire et al report. This report presented
findings from a police-led multi-agency scheme launched in July
2000 under the Home Office with the aim of reducing alcohol-related
crime and disorder in central Cardiff.
The findings from this study showed that there
were significant reductions in violent and disorderly incidents
occurring in or just outside individual pubs and clubs which were
the subject of carefully targeted policing operations. The most
successful of these, lasting eight weeks, was followed by reductions
of 41% and 36% in such incidents in and around the two clubs targeted.
The reductions were also sustained over time.
The Home Office also monitors the levels of alcohol-related
violent crime and the perceptions of alcohol crime on an annual
basis via the large-scale British Crime Survey (BCS). The results
show that in 2006-07 46% of victims of violent crime perceived
the offender to be under the influence of alcohol; a similar proportion
to the previous year (45%). Additionally, the proportion of adults
who perceived drunk and rowdy behaviour in public places to be
a fairly/very big problem in the year ending December 2007 was
the same compared to the year ending 2006.
The Secretary of State for DCMS said in a written
statement to the House of Commons on 4 March 2008 about the Evaluation
of the impact of the Licensing Act 2003: and tackling alcohol-related
harm:
Whilst crimes involving violence may have reduced
over the evening and night time period, the evidence also points
to increases in offences, including violent crimes, reported between
3.00 am and 6.00 am. This represents 4% of night-time offences.
Similarly, whilst there is no clear picture of
whether alcohol related demands on A&E services and alcohol-related
admissions have risen, some hospitals have seen a fall in demand,
others have reported an increase.
It is also clear that the overall reduction in
alcohol-related disorder we wanted to see across the country has
not materialised consistently in all areas.
Although the Association is aware of DCMS desire
for further new powers to deter wider anti-social behaviour associated
with alcohol consumption, more may be needed by way of liaison
between the DCMS and the Ministry of Justice to ensure a commonality
of approach. For instance, the new Magistrates' Courts Sentencing
Guidelines that came into force in August 2008 do not make explicit
reference to the expectation of a licence withdrawal after two
sales to those under 18 within a specified period. Although we
have no figures, we have not been notified by members of any increase
in closure notices.
The Association notes that reference is generally
made to offences and not to detection. It would be possible for
the courts to see more offenders even if the level of offending
fell, were the rate of detection to rise.
It is likely that the courts see only a proportion
of alcohol related violence. As the following comment from the
Government Office for the South East makes clear, not all violence
may be reported to the police:
Information collected by emergency departments
is useful because many alcohol related assaults are not reported
to the police but the injuries sustained in those assaults are
often treated by hospitals. The information collected by emergency
departments combined with police information provides a clearer
picture of alcohol related crime and disorder in an area. There
is evidence to show that the sharing of information between agencies
can reduce assaults, thereby also reducing alcohol related injury
admissions to emergency departments. 22 hospitals in the South
East are currently involved in implementing this violence prevention
model.
The evidence on the levels of alcohol related
crime and disorder since the introduction of the 2003 Licensing
Act seems somewhat mixed. In some areas there have been improvements
whilst in others there remain concerns as two recent illustrations
from the West Country have demonstrated.
Judge Cottle at Exeter Crown Court said that
licensing laws had been "relaxed to the point where there
effectively weren't any".
http://news.bbc.co.uk/1/hi/england/devon/7544213.stm—accessed
from the web 25/08/2008
The Chief Constable of Devon and Cornwall police
told the Home Affairs Select Committee earlier this year that
in 2004-05, 33% of violent offences in Devon and Cornwall were
drink-related but this rose to 46.8% in 2007-08, or 3,261 crimes.
http://news.bbc.co.uk/1/hi/england/devon/7434101.stm—accessed
from the web 25/08/2008
Recording alcohol and offending
There is an issue with reporting the relationship
between alcohol and offending. Where the offence relates to the
consumption of alcohol, such as drink driving, there is no problem.
However, in domestic violence, how far is alcohol to be seen as
an aggravating factor and does this mean that the offence should
be classified as alcohol related?
Effective use of police resources following the
introduction of the 2003 Licensing Act
Some of the evidence already cited refers to
the fact that after 2005 more offences involving violence were
taking place later in the evening and into the early hours of
the morning. Although this is not an issue for DCMS, the long
distance between charging centres in some rural areas can mean
limited police cover to deal with these offences if police officers
are conveying suspects from earlier incidents to a central charging
centre. The risk must also be that the extension of opening hours
has also spread police resources more thinly. The work undertaken
in cities such as Cardiff may offer a solution in urban areas,
but more thought may be needed in relation to towns with less
than 100,000 populations; especially where there are concentrations
of young people in the high risk 18-25 age group.
Conclusion
The 2003 Licensing Act confirmed many of the
changes that were already being introduced by other means, such
as later opening hours associated with public entertainment licences
and the growth of clusters of premises in city centres that followed
the decision in the late 1990s that justices could not consider
the issue of "need" when granting a new licence. These
changes, together with the revolution in retailing, probably drove
many of the changes that produced the current licensing scene.
For most, the social revolution in relation
to alcohol consumption of the past 20 years has been a success;
for a small minority, whether bent on violence or seduced into
it by excess alcohol consumption, the effects of the 2003 Act
have probably been minimal.
The courts are now only marginally involved
in the licensing process, but remain fully involved in dealing
with the consequences of the consumption of alcohol on society
more generally.
The DCMS Select Committee is no doubt particularly
interested in the regulatory aspects of the 2003 Licensing Act.
Apart from the specific issues raised at the start of this note
the Magistrates' Association recognises that, from the point of
view of our members, the switch from our courts to local authorities
as the regulatory body has been successful.
To the extent that this switch has not resulted
in a nationwide reduction in alcohol related offending, the Act
has so far been less successful.
September 2008
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