Joint Committee on Human Rights First Report

D. Part 1, Chapter 2: Combatting alcohol-related disorder

11. These provisions include:

(i) a nation-wide power to make orders designating specified public places as being, in effect, alcohol-free zones;

(ii) a power for a senior police officer to make a closure order in respect of premises for a period of up to 24 hours;

(iii) amendments to the law relating to alcohol and young persons;

(iv) the extension to bar staff of criminal liability in relation to certain responsibilities previously imposed only on licensees.

(i) Prohibiting alcohol in designated public places: clauses 12-16

12. These clauses would allow local authorities to make orders designating identified public places for the purposes of the Chapter if satisfied that nuisance or annoyance to members or a section of the public, or disorder, has been associated with the consumption of intoxicating liquor there.[12] When an order has been made in relation to a public place, a constable will be entitled to require a person to stop consuming intoxicating liquor there if he reasonably believes that the person is or has been consuming intoxicating liquor, or intends to consume it, in the designated public place. The constable will also have power to require such a person to surrender any intoxicating liquor or unsealed container for such liquor. Failing without reasonable excuse to comply with a requirement under this provision would be an offence.[13]

13. This makes nationwide provision equivalent to the local arrangements already made under bylaws by 113 local authorities under section 235 of the Local Government Act 1972 and other powers. The Home Office told us that the extension proposed in the Bill is a response to the well-established link between alcohol consumption and violent crime,[14] and is intended 'to provide a consistent set of powers backed by a power of arrest which may be adopted by local authorities in a quicker and less bureaucratic process than the adoption of bylaws.'[15]

14. The power to designate public places for this purpose is very wide. The test in clause 15(2), 'if they are satisfied that...', is subjective, making it difficult to challenge a designation by way of judicial review. 'Public place' is defined as 'any place to which the public or any section of the public has access, on payment or otherwise, as of right or by virtue of express or implied permission'.[16] Thus a place which is privately owned and enclosed behind walls or fences may be a designated public place in which consumption or possession of alcohol can be effectively proscribed by a constable, if the local authority is satisfied that the conditions mentioned in clause 13(2) are met.

15. These provisions have the capacity to interfere with the right to respect for private life and the home under ECHR Article 8.1 (even if the place in question is defined as public for the purposes of clause 15), and with the right to quiet enjoyment of property under Article 1 of Protocol No. 1. It is likely that the interference with the freedoms in question would be accepted as pursuing a legitimate purpose under Art. 8.2 and a public interest or general interest within Art. 1 of Protocol No. 1.

16. However, we were concerned about the possibility that the provisions might fail to satisfy the standards necessary to justify the intrusion under those Articles in two respects: the requirement for legal certainty,[17] and the need for a fair balance to be struck between competing interests. We raised these matters with the Home Office.

17. As to the 'fair balance' point in relation to the right to property under Article 1 of Protocol No. 1, we accept that confiscation of property is likely to be justified since 'the value of items confiscated is likely to be minimal and any interference which there may be is justified in the public interest in preventing injuries and disorder',[18] as long as police officers are guided by those objectives when exercising their discretion.

18. In respect of legal certainty, we queried the breadth of the definition of 'public place' in clause 16(1), including 'any place to which the public or any section of the public has access, on payment or otherwise, as of right or by virtue of express or implied permission'. The Home Office[19] made it clear that the definition was intended to allow private places to be designated if, like shopping malls, they were places to which the public have access. In his oral evidence to the Committee, the Minister pointed out that the definition of 'public place' had to be read together with the restriction to places 'that have experienced nuisance, annoyance or disorder arising from public drinking'.[20] In the light of that, we consider that the test of certainty is met.

19. In relation to the balancing of competing interests under Article 8.2, arising from the requirement that an interference with the right to respect for private life should be 'necessary in a democratic society', we consider that it will primarily be a matter for local authorities to ensure, case by case, that the power is used only in circumstances where the evidence clearly shows that there is a pressing social need to prevent alcohol-related disorder or crime, and that the interference with rights caused by the designation of a specific public place is proportionate to that need.[21] We were reassured to learn that the regulations to be made under clause 13(4) will include a requirement for consultation, before designation, with those whose interests are affected, particularly owners of land to be included in a proposed designated area.[22] We were surprised that the drafting of the Bill would, on the face of it, allow an area to be designated as a result of a single occasion of disorder at any time in the past. The Minister accepted that this raised an issue of proportionality. He did not believe that any limitation by reference to a period of time would significantly reduce the risk of a lack of proportionality, although he agreed to think about the matter.[23] He was content to leave to the judgment of local authorities the number of incidents which would justify designating an area under particular circumstances, allowing them to take account of local circumstances (such as an impending football match).[24] We accept that a requirement that designation should not take place after fewer than (say) two incidents, or more than (say) six months after the last incident, would be to some degree arbitrary. Yet we remain of the view that the power is open to abuse, and hope that steps will be taken to reduce the risk that aggrieved persons will feel the need to challenge designations in court. The Minister accepted the need for the Government to monitor the use of the power, which had been raised during the Committee Stage of the Bill in Standing Committee F in the House of Commons.[25] We agree, and hope that the method of monitoring will enable the Government to ensure that the powers are being used in a proportionate way.

20. We conclude that whilst the provisions interfere with the right to respect for private life, they meet the needs of legal certainty and pursue a legitimate aim. However, they could be used in an arbitrary or disproportionate way, and we therefore consider that there may be a need for additional safeguards. For example, each House may wish to ensure that local authorities, when deciding whether to designate a particular place, will be aware:

(a) of the need for evidence of a current threat which makes the designation of that place appropriate and necessary; and

(b) of the need to take particular note of evidence about the frequency of occasions of alcohol-related disorder or crime in the area over the period starting six months before the decision is taken.

(ii) Closure orders made by the police in respect of licensed premises

21. Clause 17 of the Bill would amend the Licensing Act 1964, adding a power for a senior police officer to make a closure order requiring identified licensed premises to remain closed for up to 24 hours if he reasonably believes that disorder is likely on or in the vicinity of the premises, and that closure of the premises is 'necessary in the interests of public safety', or if he reasonably believes that excessive noise emanating from the premises is causing a disturbance to the public, and that closure of the premises is necessary to prevent the disturbance (new section 179A(1) inserted into the 1964 Act). Justices would be empowered to extend the order (new section 179B), and pending a hearing before the justices it could be extended for up to 24 hours at a time by the senior police officer (new section 179C). A closure order might lead to the revocation of the publican's licence (new section 179E).

22. A closure order may interfere with the freedom to use one's premises for commercial purposes, causing a loss of income. It may also lead to the cancellation of the licence. The Government accept that these restrictions interfere with rights under Article 1 of Protocol No. 1.[26] Under that Article, any interference must be 'provided for by law', introducing a requirement for legal certainty.

23. The Government accept the need for certainty, but stress the importance of making the power sufficiently flexible to allow it to be used in response to a wide range of conditions which amount to 'disorder' or 'excessive noise'. In relation to noise, the standard needs to allow the police to take account of 'factors such as the time of day, whether the neighbourhood is residential, and whether the noise is prolonged or short-lived.'[27] The Government also point out that there are additional safeguards for rights, including the police officer's reasonable belief that it is necessary to make an order in the interests of public safety or to prevent the disturbance, taking account of the licensee's conduct, and the need for the order to be considered by a court.[28] We agree that these matters are relevant to the existence of a pressing social need to interfere with a right, and we are satisfied that the interference is not disproportionate.

24. Clause 19 would allow a constable or a local authority to serve a closure notice in respect of premises which the constable or authority is satisfied are being used for the unlicensed sale of intoxicating liquor for consumption on, or in the vicinity of, the premises. It appears that this notice would have no immediate legal effect in itself, but would be a condition precedent to the constable or local authority applying to a magistrates' court, which would then be empowered to make a closure order under clauses 20 and 21. The process as a whole engages the right to peaceful enjoyment of possessions under Article 1 of Protocol No. 1, but in our view the standard for serving the notice is adequately precise, and the order would appear to serve a legitimate public or general interest. Any decision to make a closure order would be taken by a magistrates' court after an inter partes hearing, with provision in clauses 22 to 24 for orders to be terminated, discharged or appealed against. In view of this, we are persuaded that the safeguards are sufficient to ensure that a fair balance can be struck in each case between the public interest and the interests of the occupiers of the premises, including third parties who share the premises in question.

(iii) Confiscation of alcohol, etc., from young persons

25. Clause 29 would extend section 1(1) of the Confiscation of Alcohol (Young Persons) Act 1997 by permitting a constable to require a young person to surrender an unsealed container for intoxicating liquor, as well as intoxicating liquor itself. This engages ECHR Article 1 of Protocol No. 1, but is unlikely to present special difficulties of justification by reference to human rights standards in most cases, in view of the public interest in preventing under-age drinking and the fact that the value of the property confiscated will usually be small.

26. Clause 30 would change the defence available to a licensee charged with selling intoxicating liquor to a person under the age of 18. The defence would be available under section 169A of the Licensing Act 1964 only if the defendant proved both that he positively believed that the person was not under 18, and either (i) that he had taken all reasonable steps to establish the person's age (for example, by asking the person's age, unless no reasonable person would have believed the answer), or (ii) that nobody could reasonably have suspected from his appearance that the person was under 18. This places on the defendant the burden of proving certain facts in order to establish innocence (in contrast to the usual rule, which places on the prosecutor the burden of establishing all facts necessary to establish guilt). Such a provision ('a reverse-onus rule') potentially engages the licensee's right to a fair trial under ECHR Article 6 as it has been interpreted by the European Court of Human Rights.[29]

27. The reverse-onus provision in clause 30 calls for particularly careful scrutiny. None the less, we have come to the conclusion that this particular provision does not give rise to concerns about compatibility with human rights, taking into account the following features of clause 30:

(a) most of the matters about which the defendant would have to persuade the court (his belief as to the age of the purchaser of liquor, and the steps taken to establish his age) would be within the defendant's special knowledge (although this does not apply to evidence 'that nobody could reasonably have suspected from [the purchaser's] appearance that the person was under eighteen');

(b) the requirement to prove that the defendant took all reasonable steps is not excessively burdensome in view of new section 169A(2A) which clause 32 would insert into the Licensing Act 1964, requiring merely that the defendant asked the purchaser for evidence of his age, unless the prosecution shows that no reasonable person would have been convinced by that evidence;

(c) does not turn the offence into one of strict liability;

(d) the offence is of a regulatory nature, and conviction does not carry with it great moral obloquy;

(e) the penalty which may be imposed on conviction is limited to a fine.

28. Clause 31 allows a young person to be used as an agent provocateur to induce a licensee or his or her staff to sell intoxicating liquor to someone under the age of 18. The provision itself is unexceptionable on human rights grounds if the sole purpose is to indicate to officers when those employed in licensed premises merit further investigation or observation. However, if the evidence from the young person is used at a trial of the licensee for a criminal offence, or for the purposes of proceedings to strip him or her of the licence, there is a risk that it will deprive the licensee of a fair hearing, violating Article 6.1 of the ECHR, although the caselaw of the European Court of Human Rights on this point is not yet settled.[30] The English Court of Appeal suggested in R. v. Shannon[31] that admitting evidence of agents provocateurs would make a trial unfair, violating Article 6.1, only if (a) the agents provocateurs in that case were police officers, and (b) the officers had actively instigated or incited the offence. In Shannon, the agent provocateur had been a News of the World journalist posing as an Arab sheikh in search of drugs, and there was said to have been no active instigation of the offence by the journalist. In those circumstances, the evidence had been rightly admitted by reference to ordinary English law.[32]

29. In the context of clause 31 of the Bill, where a youth seeks to buy intoxicating liquor at the request of a constable or a weights and measures inspector the state is clearly responsible for the youth's actions (unlike the position in relation to the undercover journalist in R. v. Shannon). If the youth instigates the offence, and there is no evidence that the licensee or staff would have been likely to commit the offence without that instigation, there is a real danger that admitting the evidence of the youth would be regarded as rendering the trial unfair. However, that would stem from the use made of the youth's evidence in any given case.

30. We have therefore concluded that the provisions of clause 31 in themselves are not necessarily incompatible with any Convention right. However, this conclusion is tempered by the uncertainty surrounding this area of law, and the potential for further development of it, either by courts in England and Wales under the Human Rights Act 1998 (the provision in clause 31 would not extend to the rest of the United Kingdom) or by the European Court of Human Rights.

(iv) A new offence of permitting drunkenness and certain conduct on licensed premises

31. Clause 32 would insert a new section 172A in the Licensing Act 1964, making it an offence for a person in charge of or working on licensed premises to permit certain kinds of behaviour on the premises. The types of conduct include drunkenness, or any violent, quarrelsome or riotous conduct: new section 172A(1). It would also be made an offence for staff to sell intoxicating liquor to a drunken person: new section 172A(3). As the Government made clear to us, the purpose is to impose on all bar staff responsibilities equivalent to those already imposed on licensees for maintaining standards of good order in licensed premises, and to enforce the responsibilities with criminal sanctions.[33] This is thought to be desirable because, as the Minister said:

'the nature of the licensed industry has changed significantly over a period, away from a large number of individual licensees and publicans to a number of major organisations who employ and retain staff to run their pubs and clubs, and so on. We think that there needs to be absolute clarity in the legal rights and responsibilities. There should not be an argument that so and so was not the licensee and therefore has no responsibility.'[34]

32. We sympathise with this, and welcome the commitment to legal certainty. We consider that certainty could be further enhanced by revisiting the definition of the offence. It employs archaic language ('any violent, quarrelsome or riotous conduct') some of which (notably 'quarrelsome conduct') is not self-evidently in tune with the requirements of legal certainty in an era of human rights. We consider that the clause engages the right of patrons of bars to freedom of expression under Article 10 ECHR. In the course of his oral evidence to the Committee, the Minister accepted that imposing a legal duty on bar staff to remove a person for quarrelsome conduct could indirectly interfere with that person's right to freedom of expression,[35] and that even the word 'drunkenness' might not be as certain as had originally been thought,[36] despite having been in use in legislation since 1862 in Scotland and 1872 in England and Wales.[37] We are therefore glad to learn that the Government are reviewing the whole of liquor licensing law.[38] We hope that the opportunity will be taken to ensure that adequate legal certainty and proportionality can be achieved in the definition of criminal offences. In the meantime, it is important that bar staff are not unfairly treated, and in particular that clause 32 is operated in a way which respects the Government's intention, as expressed to us, that expulsion from licensed premises 'will be reserved for seriously disruptive or threatening individuals.'[39]

12   Clause 13. Back

13   Clause 12. Back

14   Home Office Memorandum, paras. 6 and 7. Back

15   Home Office Memorandum, para. 8. Back

16   Clause 16(1). Back

17   Annex 2 provides a brief explanation of the principle of legal certainty. Back

18   Home Office Memorandum, para. 11. Back

19   Home Office Memorandum, para. 10. Back

20   Answer to Q. 3, referring to what is now clause 13(2) of the Bill. Back

21   Annex 2 provides a brief explanation of the principles of necessity and proportionality. Back

22   Home Office Memorandum, para. 12. Back

23   Oral evidence, answer to Q. 4. Back

24   Oral evidence, answer to Q. 5. Back

25   Oral evidence, answer to Q. 6. Back

26   Home Office Memorandum, para. 15. See Tre Traktorer Aktiebolag v. Sweden (1989) 13 EHRR 309, Eur. Ct. HR, and the submission to the Home Office by Mr. Martin F. Walsh, Time for Reform: Proposals for the Modernisation of our Licensing Laws-Some Personal Thoughts, reprinted at pp. 27-34 of our First Special Report (especially at paras. 19-27). Back

27   Home Office Memorandum, para. 16. Back

28   Home Office Memorandum, paras. 17-18.  Back

29   Annex 2 contains a brief explanation of the relationship between reverse-onus rules and the right to a fair trial. Back

30   Compare Teixeira de Castro v. Portugal, Eur. Ct. HR, (1998) 28 EHRR 101, with Schenk v. Switzerland, Eur. Ct. HR, (1988) 13 EHRR 242. For equivalent cases in the United Kingdom, see R. v. Shannon [2001] 1 WLR 51 at pp. 69-70, and R. v. Hardwicke and Thwaites (unreported), 10 November 2000, CA. Annex 2 contains a brief account of this caselaw. Back

31   [2001] 1 WLR 51 at pp. 69-70. Back

32   See R. v. Christou [1992] QB 979, CA; R. v. Smurthwaite [1994] 1 All ER 898, CA; R. v. Chalkley [1998] QB 848, CA. Back

33   Home Office Memorandum, paras. 20 and 23. Back

34   Oral evidence, answer to Q. 22. Back

35   Oral evidence, answers to QQ. 14 and 20. Back

36   Oral evidence, answer to Q. 12. Back

37   Home Office Memorandum, paras. 20 and 21; Home Office Supplementary Memorandum para. 14; oral evidence, answer to QQ. 10 and 13. Back

38   The White Paper, Time for Reform: Proposals for the Modernisation of our Licensing Laws, Cm. 4696 (April 2000), elicited relevant submissions by the Justices' Clerks' Society and Mr. Martin F. Walsh, provided to us by the Home Office, and reproduced at pp. 23-34 of our First Special Report. Back

39   Home Office Memorandum, para. 24. Back

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