Police Reform and Social Responsibility Bill

Memorandum submitted by Richard Langdon (PR 130)


This response has been prepared by a solicitor employed by Durham County Council and are his submissions. He has been involved in licensing matters throughout his professional life and since 2004 has worked within local government and been closely involved with the bringing in of the Licensing Act 2003, the handling of applications and committee hearings with respect to the same and attending meetings on the subject at the Home Office and DCMS.

The comments below have been done by addressing them to the guidance notes issued by the Home Office alongside the publication of the Bill. It was considered easier and more helpful to do this as it involves additional matters that could be brought within the Bill or looked at differently.

1. Closing times

Whilst the proposal to enable staggered times is well motivated it will be unworkable. There would need to be evidence to support a need for this for each area. An applicant may have a licence that gives him until say 02:30 but then another applies after him and is told he cannot have it to 02:30 as there is already a licence to that time in his area. It will lead to appeals. It could breach Human Rights legislation. An alternative is to have premises alternate their closing times in an area. That would be almost impossible to keep on top of and enforce.

It would not be enforceable against existing licensees unless their licence was to be reviewed or there was legislation to force a change in their licensing hours. This again has Human Rights implications.

The question posed in the support paper asks about what evidence there is to need this provision but it is not answered in the paper. Does that indicate there is no evidence to support the view?

To apply this concept a Licensing Authority will need to have strong evidence and cannot rely on speculative fear. There are not many premises that have or operate late licences. Across Durham City there are only 6 establishments that can sell alcohol after 02:00, of these it is believed 4 only until 02:30 and they are a mixture of public houses and restaurants.

Also see 2 below with reference to serving drunks.

2. Consideration of the Local Area

This is an important facet omitted from the original Act. Under the previous legislation an applicant would provide details of the area and in particular the location of other licensed premises. An applicant ought to be required as a minimum to provide a detailed plan showing other licensed premises and their type in the vicinity of the subject premises, say up to a distance of 1 mile therefrom. He should also indicate what could be vulnerable premises such as schools, meeting halls, churches, hospitals and residences and how he intends to prevent disruption.

In addition an applicant should be required to provided full details about how his premises will be managed, the maximum capacity, security arrangements, training of staff and provisions to prevent not only under age sales but sales to persons considered to be drunk or too much under the influence.

The latter has been an offence for a long time but nowadays is rarely enforced. Rigid enforcement would probably alleviate many of the late night problems and drastically reduce the health related ones.

3. Cumulative Impact

What is proposed does not help. Whether the evidential burden is lowered or not an authority will still have to have good evidence to support a cumulative impact policy. What is proposed does not make any practical changes to what already exists.

Also see 2 above with reference to serving drunks.

4. Early Morning Restriction Orders

Evidence will be needed, making an order cannot be speculative. An authority will be mainly dependent on the Police for this evidence. Without substantial evidence to support an order it may be difficult to make one without the risk of a successful challenge.

Note: There is an unfortunate typing error in the support document, second page, which can be read as an authority is only allowed to impose an early morning order for the whole of its area and not specific parts. The hyphen needs to be removed. It is noted the draft Bill does not replicate this error.

Again also see 2 above with referenced to serving drunks.

5. Fees – non-payment of

This was a error in the original Act. It always was the case that no fee paid, the license lapsed. It is needed. 21 days grace is sufficient but there should be no exemptions for administrative error. It is up to a licensee to ensure he renews on time. There could perhaps be a provision that an authority is required to have sent out a reminder before the licence lapses as that removes any suggestion of administrative error but that imposes another administrative burden on the authority and should it really be necessary?

6. Late night levy

The concept is a good one but it is how it would be applied that will be problematic. Supermarkets are open 24 hours, will they be exempt as there are no problems in their location yet it is suggested they are a cause of people getting alcohol early in the evening and going out drunk? Evidence would be needed to support that view.

If premises have good controls and a good reputation then it sounds fair to provide a discount on the late night levy for such but administering that will not be easy. Best Bar None schemes exist. Perhaps a late night levy is reduced to 50% provided a premises maintains a level in the Best Bar None process, i.e. a points system and if the maximum were 100 a premises has to consistently maintain 90% or more.

Consideration should be given to the use of the levy. There are voluntary bodies, such as Street Lights, that now provide a lot of support for in-need customers late at night, whether suffering from the effects of alcohol or other distress. A volunteer group can often have far greater success than officials do. Perhaps some of the levy should be allocated to voluntary groups.

7. Local Health Bodies

It is not clear what the proposal will achieve. So far as aware no records are kept by Local Health Bodies of accidents and injuries relating to specific premises. There would need to be a statutory requirement imposed on them to make this effective. Without any changes to the Act, if they had that evidence today, there is an easy mechanism to instigate a review of a particular premises without they needing to be a responsible authority.

It is not necessary to make a Local Health Body an interested party simply so that a Licensing Authority can be better informed about the effects of alcohol and other licensed activities. That information can be easily supplied perhaps on a quarterly basis to an Authority for its Committee to take account of when reaching a decision.

8. Persistently selling alcohol to children

Increasing the maximum fine to £20,000 is a damp squib. Magistrates never seem to impose the maximum but only small penalties of a few hundred pounds. Knowing that, a licensee is not going to be put off by the maximum penalty being £20,000. It does not deter people from wantonly breaking the law.

A simple mechanism to deal with under age sales, and provide a far greater deterrent, is to provide that if a licensee is caught selling to an under age person, whether by test purchase or other means, the licence is immediately suspended but the licensing authority are required to hold a hearing within 28 days. Very much like the emergency interim procedure under section 53A of the Act which means there has to be an initial hearing within 48 hours.

Licensees will soon get the message. It has to be far more effective than "two strikes and you are out" or having a maximum fine.

It cannot be considered a draconian measure as following the introduction of the new Mandatory Conditions on the 1st October 2010 it is not now possible to fail a test purchase unless you deliberately do so.

There should be a provision that it is always Challenge 25 that is adopted. No choice.

The support document for the subject "Reducing the burden of proof on licensing authorities" says "The Coalition Agreement included a commitment to overhaul the Licensing Act to give local authorities and the police much stronger powers to remove licenses from, or refuse to grant licenses to, any premises that are causing problems in the local area."

Surely adopting the above suggestion is more in line with that than a mere increase in the maximum fine?

9. Police Representations and Objections – weight of

The support document for this subject is quoted in paragraph 8 above. It is a dangerous area to venture into to suggest that even more credence is given to the Police. It has Human Rights issues. There can be cases where it seems there is undue pressure from the Police, allegations of harassment or simply an enthusiasm to see something done about a particular premises or licensee.

Case law already indicates that in making a quasi-judicial decision a Committee can give some weight and reliability to the source of the evidence given to them. That should be sufficient.

10. Responsible Authorities

A better provision would be to make it clear that a Licensing Officer, or other senior officer to whom the power has been delegated, has the power to "call in" an application if it appears to him or her that there are potential problems but nobody has made any representations that would bring about a hearing. Presumably that is what is intended.

Just to make the Authority itself a responsible body needs care as it can then be seen to be both judge and jury and it would need careful provisions setting out when it can do this. Better to simply permit an officer to have the delegated authority. This is fairer as the Committee is distanced from it and from any apparent pressure to accede to something simply because its Council have referred it.

There is needed the power for an officer to issue a licence in cases where there have been representations but all parties have reached a mediated agreement. Currently it is believed there are many licences throughout the country that have been invalidly issued because of the provisions of the Act – under the Act an officer has no power to issue a licence if there have been representations even if the parties have reached an agreement on the application. It still has to go to committee to be signed off.

11. Reducing Burden of Proof

See 9 above. The burden of proof is not high at present. It is a little below the balance of probabilities. It is adequate as it is. Perhaps a provision that a Licensing Committee is permitted to apply common sense to an application. The word "appropriate" as suggested does perhaps achieve the same.

12. Temporary Event Notices

The proposals are supported. Perhaps a power of veto is desirable as per the ACPO Notice provision that is now commonly being added to licences.

The limit on the number of persons attending needs addressing. 499 persons is not many. Currently an event on one field can attract several thousand people but by limiting notices to specific areas the legislation can be circumvented. This aspect needs tidying up. There ought to be a provision that acknowledges an event may have a variable number of persons which could at times exceed 499.

13. Vicinity.

It should be sufficient that to qualify to make representations a person has to be reside or have a business within a reasonable distance of the premises. Why not define vicinity? According to the supporting notes it appears an authority will still be permitted to reject representations if not relevant etc. If vicinity is widened to cover the whole country as proposed it can lead to many representations that will be rejected as not relevant as the person has no interest or involvement whatsoever with the area. That will lead to appeals. Never mind greater administration.

An authority needs to be given some statutory muscle to be able to reject representations.

The provision could define vicinity as "living or working within a distance of 1 mile of the premises or having a clear and established interest in an area that is no more than 1 mile from the premises in any direction."


In considering changes it is hoped that proper consideration is given to how new provisions will have to be administered. If a greater administrative burden is imposed on an authority with more complex law to enforce then in the straightened times we are in now it is likely to prove impossible to "police" what Parliament wants to be policed. Changes to the Act should be ones that are simple to understand and enforce, e.g. the suggestion of suspension of a licence following an under age sale and then a procedure as per s53A.

February 2011