Police Reform and Social Responsibility Bill

Memorandum submitted by John Gaunt and Partners (PR 18)

John Gaunt & Partners are a niche Licensing Practice – one of the largest and most highly respected in the United Kingdom – operating throughout England, Scotland and Wales. We act for a range of national operators and a large number of smaller operators.

2. We are very familiar with the operation of the Licensing Act 2003 and have made applications in respect of Premises Licences to most, if not all, of the Licensing Authorities within England and Wales. We believe this gives us a unique insight into the operation of the Licensing Act 2003 and to comment on certain provisions of the Police Reform and Social Responsibility Bill as it relates to changes to the licensing regime in Part 2 (Sections 103 – 138 inclusive).

3. The provisions in the Bill arise from a short consultation held principally over the summer months and whereas it is noted that some of the original proposals have not been carried forward into the Bill, many have, some of which represent the most far reaching reforms of the licensing system, other than the reforms within the 2003 Act itself.

4. Paragraph 2.06 of the original consultation document stated: -

"All too often High Streets are filled on a Friday and Saturday night with revellers who are not encouraged to take responsibility for their own actions. They drink to excess and expect the taxpayer to meet the cost of their overindulgence. The Government wants a fundamental shift in responsibilities ……….

The Government is committed to challenging the assumption that the only way to change people’s behaviour is through adding to rules and regulations (our emphasis). In future, solutions to address alcohol regulated problems will be found locally and by encouraging individuals to take responsibility for their own actions."

5. Whilst we wholly applaud these sentiments, the reality is that many of the provisions within the Bill only add to the rules and regulations that apply or will apply to operators within the licensed trade and none of which appear to be directed at those individuals themselves.

6. As the ministerial foreward said "the majority of licensed premises are well run businesses which provide a valuable service to their local communities and the Government recognises the important role which pubs can play as part of the fabric of neighbourhoods and villages".

7. As a result of these proposals, if enacted, that responsible majority (which is an overwhelming majority) are to be disproportionally burdened.

8. Little or no weight appears to have been given to changes – and the effect of those changes - to the Licensing Act 2003 since its implementation in 2005 or to other enforcement activity. In particular we would note the provisions for summary review introduced by the Violent Crime Reduction Act 2006, the general increased enforcement regime which operates under the 2003 Act, the very recent change to the offence of persistent sale to the under aged to 2 strikes (from 3) in a 3 month period (itself a relatively new offence), and the much increased use of closure notices under section 19 of the Criminal Justice and Police Act 2001.

9. Turning to the specific provisions within the Bill, we would comment as follows:

10. Clause 103 - Licensing authorities as responsible authorities

This is a source of real concern. The proposal makes the Licensing Authority effectively both potential applicant (or objector) and then judge and juror and raises serious issues with regard to natural justice

Article 6 of the Human Rights Act guarantees the right of applicants to a fair trial and provides as a minimum the following as of right:

a) a fair and public hearing with a public judgment;

b) an independent and impartial tribunal established by law;

c) a reasoned judgment

The right to a fair hearing in article 6(1) is primarily concerned with procedural fairness. Justice should be both done and seen to be done.

There have been legal issues in Scotland where under the Licensing (Scotland) Act 2005, the Licensing Boards already effectively are in this position.

11. Clause 105 – Removal of vicinity test

Vicinity is an essential ingredient in determining impact of licensed premises on a business or resident. Most Licensing Authorities take a pragmatic and sensible view with regard to vicinity and this generally works in a proportionate way.

We have had many experiences of representations, which have been accepted by Licensing Authorities as coming from within the vicinity, which upon closer examination, do not bear scrutiny.

Further, by removing vicinity there would no doubt be an increase in the number of representations received but of more concern is the possibility of representations from anywhere (and totally unconnected with and unaffected by the subject premises).

If statutory guidance is felt to be required on a definition of ‘vicinity’, legislators could conveniently be referred to section 158 of the Gambling Act 2005, where such a test is laid out.

Similar observations might be made in respect of Clause 106 – who may apply for a review.

12. Clause 109 – Reducing the Burden of evidence

The ‘necessary’ promotion of the licensing objectives is a fundamental cornerstone to the Licensing Act 2003. Applicants for Premises Licences or the respondents to applications for review, already have significant evidential burdens when appearing before Licensing Panels. That is the reality of the position.

Further undermining the burden of proof on Licensing Authorities in making their adjudication, will severely disadvantage the hearing process and in our submission lead to more appeals where the burden of evidence is rightly different and the additional costs which this will bring to all parties involved.

13. Clause 118 – Persistently selling alcohol to children

It should be noted that the offence of persistent underage sales is now two occurrences within a 3 month period, recently reduced from three such offences within a 3 month period. Most operators have in place robust systems to avoid sales to underage persons and where such sales occur, it is usually not a case of wilful determination to sell or a lack of educational training, but an error of judgement by the frontline member of staff. The existing 48 hour period works "well", is very salutary to the operator and staff affected and gives the opportunity for additional staff training where required. This period of voluntary closure as a minimum / maximum which should remain, failing which we anticipate that operators will be less willing to accept voluntary closure and will prefer to take their chances before the Magistrates, with consequential increased costs to all. An application for a review in such circumstances always remains an option for the enforcing authority to seek a longer closure period.

Given that the Home Office’s own evidence is that the average fine for this offence (£1713 – Consultation Paragraph 8.05) is a fraction of the current maximum (£10,000), we would question the need or effect of doubling this maximum to £20,000.

Operators would also appreciate more focussed attention on the under-aged themselves.

14. Clause 119 - Early Morning Restriction Orders

As currently drafted these would have the likely effect of a blanket ban on all licensed premises where an EMRO is adopted and have a particularly adverse effect on the hotel trade which accounts for the majority of premises licensed between the hours of 12.00 midnight and 6.00am and also the food led trade open between these hours, neither of which significantly contribute to problems of crime and disorder. We would recommend the adoption of the ‘principal use’ and ‘patronage’ tests within the Alcohol Disorder Zone Regulations 2008, for an EMRO to apply.

15. Clauses 124 –135 – Late Night Levy

We have a similar concern to that expressed in paragraph 14 above in that the levy has to apply across the whole of the Licensing Authorities area and although there is provision for exemptions and reductions (Clause 134) these are entirely in the discretion of the Licensing Authority. This is far from satisfactory.

We are happy to amplify on any of the points made above, if required.

January 2011