The Local Government Association has now issued a handbook designed for Councillors dealing with applications under the Licensing Act 2003. This is a document which we should be looking at to see what guidance is being given. This is not a statutory guidance document, such as the Guidance issued under S182 of the Licensing Act issued by the Home office and therefore does not have the same status but could be useful for when appearing in front of licensing sub-committees or in representing an appellant before the Magistrates Court.

The following link will take you to the full document:

https://www.local.gov.uk/sites/default/files/documents/10%2036_Licensing_Act_2003_V04%203_1.pdf

There is a lot of interesting content in the document and is really worth digesting, I will pick out some of the key points.

The section “strengths and weaknesses of the Licensing Act makes some very interesting points:

“In many respects, the Licensing Act is a positive model for a licensing system. It has a clear set of objectives, it allows local decision making, it has a clear appeals process and there are opportunities for everyone affected by a licence to make comments on it. Used creatively, licensing can be a tool to shape the places that communities live, work and socialise in and can help manage our concerns. However, the LGA has raised concerns about some weaknesses in the Act. Firstly, that the implementation of the Act has been consistently undermined by a lack of resourcing due to the centrally-set fee system. Secondly that the Act’s objectives have not been updated to reflect the return of public health responsibilities to local government. Licensing fees, which are set nationally have remained unchanged since 2005. The LGA has consistently argued that these fees underestimate the costs councils incur in overseeing the Act, and should be set locally. There have been various reviews and consultations around the localisation of fees over the last 10 years, and in 2015, the Government asked the LGA to work with it to develop an evidence base on the costs to councils of overseeing the Act. The LGA’s view is that locally set fees would re-dress the imbalance in fee incomes and whilst locally set fees might increase fees in some places, in others there may be decreases. Local fees could also benefit businesses, for example if there was a reduced annual fee.”

The document suggests that the LGA will push Government to look at local fee setting again in the future. It also suggests that the LGA still believes that a promotion of health licensing objective is needed:

“Lobbying for a health objective in the Licensing Act is long standing LGA policy. Whilst public health can contribute against any of the four existing licensing objectives, in practice it can be difficult for them to be heard; a specific ‘health’ objective could resolve that and allow a much more straightforward contribution. There is also strong support for a health objective among public health directors, Public Health England (PHE) and among some in Parliament. There has been a lot of work to build the evidence base for how this could work and PHE have piloted a health objective with eight advanced areas including Cornwall, Leeds and Wigan, which all developed practical ways to make using health data in licensing work. Building on this work PHE have developed an online resource’ 9 which brings together nationally available data and materials with local information to support councils to access a range of databases and tools. Local teams can input their own data to create interactive maps and reports to help them in their role as a responsible authority. Whilst there is no indication that the Government is going to take this forward, at least in the near future they continue to highlight the important role that public health plays in the licensing system as a responsible authority under the Act. This includes promoting the use of PHE’s analytical support package, providing public health teams with new tools to help effectively present relevant health data and supporting the Information Sharing to Tackle Violence programme to encourage A&E departments to share their data with community safety partnerships.”

The chapter on conditions is worthwhile reading and digesting.

“The setting of conditions is one of the most significant ways in which licensing authorities can influence the running of a premises. As well as mandatory conditions which are set out in the Act, authorities can also add ‘voluntary’ conditions to a licence. Used effectively, this can mean that authorities put in place the elements that are essential to promoting the licensing objectives. However, poorly designed or inappropriate conditions can have the effect of hampering a premises, preventing it from being financially viable and potentially leaving the community with an empty premises. The general rule is that conditions should be appropriate to the specific premises, necessary and proportionate. Many licensing authorities publish pools of conditions, which give applicants an idea of the types of conditions that may be imposed. It is recommended that these are published separately from the SLP to allow them to be updated in a more flexible way than the SLP would allow. Whilst pools of conditions are helpful, licensing committees should always avoid imposing these conditions as a matter of course, or as blanket conditions to be applied to every premises. The wording of such conditions should be seen as a template to ensure conditions are tailored to the specific operation of the premises. Licensing authorities must bear in mind that breach of any licence condition can potentially amount to a criminal offence, punishable by an unlimited fine and/or up to six months’ imprisonment. Conditions must therefore be clear, precise and proportionate in order for them to be enforceable.

Applications that do not attract any representations (or where representations have been withdrawn) are granted subject only to conditions consistent with the operating schedule and the relevant mandatory conditions. Officers will draft those conditions under delegated authority in that situation, drawing on their expertise and any pools of model conditions. However, if there have been representations then licensing authorities have the opportunity to impose or amend/modify conditions on the licence. Like any decision during a licensing hearing, the steps taken to impose conditions must be appropriate to promote the licensing objectives. A sub-committee should be proactive with conditions and it is always worth considering whether objections could be overcome by conditions. Comments should be invited on proposed conditions before they are imposed. Conditions can be imposed in any case where they are considered ‘appropriate’. The key thing to remember with conditions is that less is more. The premise licence holder will need to be able to easily implement them if they are genuinely to make a difference to how the premises are run. Licences may be issued with just the mandatory conditions. Licensing authorities should not aim to micro-manage premises through the use of conditions. Premises that appear to need more conditions than usual may have more fundamental problems in terms of management or planned operation. Many operators will put forward their own conditions when they make an application. This is to be welcomed, but licensing committees will need to ensure that all of these proposed conditions are genuinely necessary; properly worded so that they are enforceable; and are achievable. These conditions can also be modified or new conditions added.”

In the section about hearings and what to expect there is a reminder to the councillors who will be hearing the application under the heading Member conduct:

“Members must, at all times, comply with the council’s member code of conduct which should set out the standards that members must observe and include:

  • treat others with respect
  • do not bully or intimidate anyone
  • do not compromise the impartiality of an officer
  • give reasons for all decisions
  • the ‘prejudicial interest’ concept.

A prejudicial interest is ‘one which a member of the public, with knowledge of the relevant facts, would reasonably regard as so significant that it is likely to prejudice your judgement of the public interest’. Appearance of bias While third party lobbying of elected members is legitimate and councillors may make representations to the licensing committee on behalf of other persons, it is crucial for the licensing authority and its committee to ensure that there is neither actual nor an appearance of bias in its decision-making. It should also be remembered that concerns about political lobbying were the basis of the concerns which led to the first Nolan Committee on Standards in Public Life.

Section 25 of the Localism Act 2011 does not prevent councillors from publicly expressing a view about an issue or giving the appearance of having a closed mind towards an issue on which they are to adjudicate. However it is recommended that to avoid an appearance of bias the following advice should be observed.

  • No member sitting on the licensing subcommittee can represent one of the interested parties or the applicant. If s/ he wishes to do so s/he must excuse him/herself from membership of the sub-committee which is considering the application. Case law has also established they should not be in the room for the hearing once an interest has been declared.
  • If a member who sits on the licensing sub-committee is approached by persons wishing to lobby him/her as regards the licence application then that member must politely explain that they cannot discuss the matter and refer the lobbyist to his/her ward member or the licensing officer who can explain the process of decision making. If the member who sits on the licensing subcommittee wishes to represent them then s/ he will need to excuse him/herself from the licensing sub-committee.
  • Members who are part of the licensing sub-committee must avoid expressing personal opinions prior to the licensing sub-committee decision. To do so will indicate that the member has made up his/ her mind before hearing all the evidence and that their decision may not be based upon the licensing objectives nor the statement of licensing policy.
  • Members must not pressurise licensing officers to make any particular decisions or recommendations as regards applications.
  • Political group meetings should never be used to decide how any members on the licensing sub-committee should vote. The view of the Local Government Ombudsman is that using political whips in this manner may well amount to findings of maladministration. It may be advisable that the chair of the licensing sub-committee should state, during proceedings, that no member of the sub-committee is bound by any party whip.
  • Councillors must not be members of the licensing sub-committee if they are involved in campaigning about the particular application.
  • Other members (ie those who do not sit on the licensing sub-committee) need to be careful when discussing issues relating to matters which may come before the licensing sub-committee members as this can easily be viewed as bias/pressure and may well open that sub-committee member to accusations of such. While a full prohibition upon discussing such issues with committee members by other members may be impractical and undemocratic, local authorities are advised to produce local guidance for members on how such matters can be dealt with. Such guidance could include a definition of what is viewed as excessive, eg attempting to obtain a commitment as to how the member might vote.
  • Councillors must also be aware of the need to declare any pecuniary or non-pecuniary interests in matters that may come before them, whether these relate to policy issues or to specific applications.
  • Member behaviour is also governed by the code of conduct which members should have regard to, and most authorities also have a member/officer protocol which governs how members and officers should interact and the differences in their roles and responsibilities.
  • Members should consult their monitoring officers for further advice where necessary. A well-defined policy and comprehensive scheme of delegation to officers can go a long way to avoiding many of these pitfalls, although, of course, members must retain full oversight of how the scheme is working. There are no rules preventing councillors from sitting on applications within their own wards, although some authorities adopt their own rules to avoid this. Members may make representations about applications, make representations on behalf of others, or appear at a hearing if asked to do so by another person who has made a representation (subject to the rules above).”

All in all there is some really interesting stuff in this document and we wait to see if it is referred to in hearings.

Yes, we know it’s only October, but now really is the time to start thinking about whether you need to give any Temporary Event Notices (TENs) for the festive period.

First, you’re going to want to have a think about what you want to do this year. What type of events will you be running? How will they differ from the norm? Will you be offering anything e.g. Live Music, that you don’t normally offer?

After that, have a look at your Premises Licence. Does it have the hours and licensable activities you need for what you want to do?

Next, you’ll want to have a look at whether your Premises Licence has any non-standard timings that would cover you in any event. These are usually to be found underneath the standard timings for licensable activities but can and do get shifted all over the place.

Finally, it is worth checking the conditions of your Premises Licence to make sure any additional permissions haven’t been squirrelled away there instead.

If nothing is jumping out at you then you may need to give a TEN or TENs.

But we haven’t even had Halloween yet, we hear you cry! We understand but when it comes to TENs for the festive period, and in particular for New Year’s Eve, the sooner really is the better. It may be an apocryphal tale but we heard tell of a Police Licensing Team that was instructed to object to all TENs received in late November/early December on the basis that there weren’t enough police! Lots of hearings ensued and it was an awful mess.

Licensing Authorities, their Environmental Health Teams and the local Police Licensing Teams are inundated with TEN application forms (the application, not the number) in December so why not get ahead of the curve? There are time limits for how late you can give a TEN but tellingly no limit on how far in advance you can give them.

If all this sounds a bit like hard work (and given the length of the form we fully understand you feeling that way) then please do not hesitate to get in touch with your usual Woods Whur contact and he or she will make sure you’re covered. We’ve got your back, meaning you’re free to enjoy the rest of the autumn knowing everything’s taken care of.

The action-adventure video game, Grand Theft Auto, has recently made headlines for allowing its players to spend real money on gambling chips that can then be used in its new in-game casino, the Diamond Casino and Resort.

Whilst the players cannot directly buy the gambling chips, they can buy the in-game currency and with that, purchase the gambling chips. The in-game casino offers poker, slot machines, blackjack, video horseracing and roulette.

It does not appear that Grand Theft Auto had alerted players to this function, instead players have discovered the in-game facility and spread the word. It was originally thought that the only way players would be able to purchase chips would be by ‘earning’ them through playing the game, rather than being able to purchase them. It has also been reported that in countries where gambling is illegal, whilst they could enter the casino area, the ability to attend the gambling tables themselves has been blocked.

The question being asked is whether or not in-game gambling is the same as real life gambling – and whether the dangers are as real. Issues of social responsibility also arise, particularly as whilst the game is rated for ages 18 and above, it is extremely popular amongst teens. The fact that some countries have taken the stand that in-game is on a par with real life gambling, and have therefore banned the in-game function, makes this question extremely interesting.

Not being able to convert the chips back into real cash may be the only saving grace for Grand Theft Auto. At the moment, these kinds of in game purchases are not regulated as there is no way to make any real life gains on them.

The problem still stands – is this a “gateway” to real life gambling? After all, it must be possible, and consequently a risk, for the act of betting and winning online for no reward in a game to lead to betting and winning online for a real reward in real life.

Questions of money laundering must also be raised. If the game encourages players to invest in art as a way to launder money, who’s to say they won’t be encouraged to use the casino for the same purpose? Where does the gaming end and the reality begin? This will certainly be a topic to watch as the influx of virtual reality gaming is becoming increasingly popular in the gaming market.

I could have written this article about the Rugby World Cup 2019 that takes place in Japan from the 20th of September until the 2nd of November but actually, I think the principles have wider application than just one tournament taking place in the Far East.

Why am I writing this you ask? Well, because there are three certainties in life – death, taxes and that, without fail, someone will phone me up on the first day of a major tournament asking for help in order to show the games and provide Licensable Activities whilst doing so.

Major sporting events, be that the Fifa World Cup, the Olympics or the Ashes are planned years in advance and if the sporting bodies (who tend to lurch from scandal to scandal) can have the foresight to plan ahead, why shouldn’t Premises Licence Holders?

Particular issues arise where events are held in countries where the time difference is such that games are shown at times that are incompatible with most Premises Licences. The Rugby World Cup is an excellent illustration of this. Pool games kick-off times range between 12:15pm and 19:45pm local time, that’s 4:15am (if you really want to watch Namibia vs. Canada) to 11:45am. The Rugby World Cup Final kick-off is at 18:00 local time which is 09:00am here. Not many Premises benefit from a Premises Licence that authorises Licensable Activities from 04:15 onwards though some might be lucky enough to be winding up about that time.

One thing is certain. People are going to want to watch the games and people will adjust their schedules and their behaviours in order to watch their national teams – the lengths people will go to in order to watch live sport never cease to amaze me. My dear old Dad, for example, will get up in the middle of the night to watch the Australian Grand Prix. Not just the race either, the man will also get up and watch all the practice sessions and the qualifying! Lunacy, in my view, because at the point I’m usually in bed dreaming about obtaining 24 hour Premises Licences with no conditions or Summary Review applications being dismissed with no action taken at all but he’ll do it – year in, year out.

So, what can you do in order to bring sport to the masses and, I hope, turn a healthy profit in the process? First and foremost – CHECK YOUR PREMISES LICENCE – you may discover that, actually, you need do nothing at all but assuming that’s not the case and action is required there are a number of options.

Temporary Event Notices or TENs

You could give (apply for) a TEN in order to provide Licensable Activities outside the hours of your Premises Licence to, effectively, “bridge the gap” between your Authorisation and the event timings.

On the face of it, TENs seem like a good idea and if you only plan to show selected fixtures then they may be the way forwards. Problems arise however, due to the restrictions on the number of TENs that can be given per annum at a given premises (15 TENs covering no more than 21 days).

You wouldn’t for example, be able to show all the fixtures of the Rugby World Cup 2019 on TENs alone.

One advantage of TENs is that you can give the notices up until quite late in the day (5 clear working days before the event for a Late TEN and 10 clear working days for a TEN) so if you’ve missed the boat on the other options below, never fear.

Variation

Another option is to apply to vary your existing Premises Licence to take into account additional hours needed for the Major Sporting Event. You would need to go through the formal application process of making an application to the Licensing Authority, advertising the application on site and in a local newspaper and serving a copy of the application on the Responsible Authorities (unless you apply online).

One problem with this approach is that the Responsible Authorities (and Other Persons for that matter) might not be terrifically keen on you increasing your hours in perpetuity. A way around that might be to apply for “non-standard timings” specifically for Major Sporting Events. Your application would need to be very clear what you are applying for and when and so it might be worth having a Licensing Solicitor (hint, hint, hintity, hint, hint) have a look at the application for you to make sure you’re not making things worse for yourself.

Another potential pitfall of this approach is that some Licensing Authorities take the approach, on a variation, that they can have a look at other aspects of the Premises Licence too so if your beer garden or smokers are creating a racket then you might be taking on more than you bargained for!

Premises Licence Application

Alternatively, you could apply for a whole new Premises Licence. Why on earth would you do that I hear you ask? Well, first and foremost it protects your existing permission from interference from the powers that be. If you don’t get what you want or you end up with onerous conditions you simply bin the licence and carry on with your existing Premises Licence. Second, the costs, timescales and requirements for a Premises Licence application are identical to those for a variation so you would not be placing yourself at a disadvantage time-wise. Third, Licensing Authorities will generally accept a Premises Licence application that is “traded off” against the surrender of your existing Premises Licence and will often view the application differently than an outright new Premises Licence application.

The problem though is this – you may have an old licence, perhaps even one that came with you on conversion in 2005 and should therefore be coveted and looked after carefully. The Licensing Act 2003 is now 14 years old and, like a stroppy teenager, Licensing Authorities are starting to get wise to the ways of the world. Statements of Licensing Policy (which every Licensing Authority must have) are becoming more sophisticated and more tailored to suit the kinds of environments councils want to push. It may come as a surprise to you but, in policy terms, your pub or bar may no longer be flavour of the month so any application should be approached with a degree of caution and with sound advice (I’m hoping the first hint was enough, but you never know).

I’ve probably made all these options sound terrible but there is a correct answer, in my view, and that is an application for a time-limited Premises Licence.

Time limited Premises Licences are usually the province of festivals and outdoor events where the applicant will apply to provide Licensable Activities between X and Y and only between X and Y. But if the Fifa World Cup is a “festival of football” why should that approach not work equally for bricks and mortar operators? Think about it – you make your application for a time-limited Premises Licence, it has Major Sporting Event all over it and the timings marry up perfectly with the fixtures. You propose appropriate and proportionate conditions to promote the four Licensing Objectives for the duration of the Premises Licence. You risk assess the different hours and have that in your back pocket just in case questions are asked. Starting to look like an attractive proposition both for operators and for Licensing Authorities no? Remember, there can be more than one Authorisation (Premises Licence) in place at any given Premises or part thereof.

So if it was my money, my Premises that’s how I’d do it. A time-limited Premises Licence set up specifically for the purpose of a Major Sporting Event.

There are, of course, a whole host of other things you’re going to want to think about in terms of providing Licensable Activities during Major Sporting Events but hey, I’m a solicitor not a charity so if you’d like to know more please get in touch.

I have had a rush of non-compliance with conditions cases recently which can have very serious ramifications. If you are an operator and have a condition(s) on your licence which you feel is no longer relevant, it is overly restrictive and therefore disproportionate/inappropriate to promote the licensing objectives–you can’t just arbitrarily decide not to comply with it. Some of these non-compliance issues have led to interviews under caution and there is then potential prosecutions to come.

All conditions on premises licences have to be complied with. Non-compliance can have significant consequences. It can lead to you having a poor relationship with the Responsible Authorities, could lead to a review of your premises licence and/or lead to a prosecution under S136 of the Licensing Act 2003. I have 3 cases on at the moment where we are looking to have licences extended and relatively minor non-compliance with conditions could frustrate the applications being viewed favourably. I have also had a couple of reviews where non-compliance with conditions has been added in to bolster the application for review.

The most serious position is that of a potential prosecution.

S136 states:

Unauthorised licensable activities

(1) A person commits an offence if—

(a) he carries on or attempts to carry on a licensable activity on or from any premises otherwise than under and in accordance with an authorisation, or

(b) he knowingly allows a licensable activity to be so carried on.

The potential sanctions are significant, being a term of imprisonment not exceeding 6 months and/or an unlimited fine.

Put simply, do not take the risk. If there is a condition on your licence you MUST comply with it. If you want to have the condition removed then speak to the licensing officer from the Authority and the relevant Responsible Authority officer. If it is a crime and disorder condition then speak to the police, if it is a public nuisance condition then speak to the Environmental protection officer. The condition may be old and no longer relevant, if so the authorities maybe amenable to the condition being removed by the simplified process of a minor variation.

You may have to go to a full variation application in which case we can prepare fully to explain to the licensing committee why the condition should be removed from the licence, you cant just not comply and run the risk of enforcement.

The S82 Guidance document issued by the Home office is very helpful when looking at conditions.

The link below takes you to the current edition:

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/705588/Revised_guidance_issued_under_section_182_of_the_Licensing_Act_2003__April_2018_.pdf

The most relevant paragraphs are:

Licence conditions – general principles

Conditions on a premises licence or club premises certificate are important in setting the parameters within which premises can lawfully operate. The use of wording such as“must”, “shall” and “will” is encouraged. Licence conditions:

  • must be appropriate for the promotion of the licensing objectives;
  • must be precise and enforceable;
  • must be unambiguous and clear in what they intend to achieve;
  • should not duplicate other statutory requirements or other duties or responsibilities placed on the employer by other legislation;
  • must be tailored to the individual type, location and characteristics of the premises

and events concerned;

  • should not be standardised and may be unlawful when it cannot be demonstrated that they are appropriate for the promotion of the licensing objectives in an individual case;
  • should not replicate offences set out in the 2003 Act or other legislation;
  • should be proportionate, justifiable and be capable of being met;
  • cannot seek to manage the behaviour of customers once they are beyond the direct

management of the licence holder and their staff, but may impact on the behaviour of customers in the immediate vicinity of the premises or as they enter or leave; and

  • should be written in a prescriptive format.

(Para 1.16)

If you have old conditions which do not follow the guidance it is worthwhile bringing it to our attention to see if it is a condition which should be removed or amended. Please do not just think that it isn’t relevant anymore therefore I wont comply with it. Act first and look to remove rather than run the risk of prosecution.

Presentation 1 – Fire safety – Post Grenfell  

Presentation 2 – Entertainment / Alcohol Licensing – What’s new?

Presentation 3 – Coroner’s inquests – what’s in it for me?

Presentation 4 – Sentencing and what does it really mean?

Presentation 5 – Regulatory smorgasbord  – topical round up of cases, developments and issues to watch out for

Presentation 6 –  Insurers – what can they make you and what can they not make you do?!

Woods Whur’s Regulatory Team would like to invite you to its latest regulatory seminar on 25 September 2019 from 9:00am until 12 noon at Gateshead College’s impressive seminar space.

Woods Whur’s niche specialist regulatory lawyers will be delivering a topical round up on a variety of regulatory matters from food, fire, health & safety to environmental, coronial law and entertainment licensing. We do hope that you can join us for what promises to be a useful series of presentations on the ever changing world of regulatory compliance, investigation and enforcement.

The speakers will be James Thompson, the Head of Regulatory Department, who has over 20 years’ experience acting for clients, subject to regulatory investigation and prosecution.  He also has many years’ experience from the police service.  James also sits as a Coroner for County Durham.

Along with James, Andy Woods will also be speaking. Andy is a nationally acknowledged expert in licensing & gaming law will be speaking on topical issues affecting those operating in that sector. Andy has specialised in licensing for over 25 years and has higher rights of audience which allows him to represent his clients in all UK courts concerned with any proceedings. Andy has received commendations for his skill in running large projects in the betting and gaming sector. He acts for international, national and individual operators concerned with both alcohol and gambling licensing.

Sarah Frow from within the Regulatory team will also be speaking alongside James and Andy. Sarah is a regulatory and licensing lawyer and assists business clients facing investigations and prosecutions by the police, the Health and Safety Executive, the Care Quality Commission, the Gambling Commission, Food Standards Agency and other regulatory bodies. As well as criminal proceedings, Sarah advises clients regarding inquests and public inquiries.

If you can join us, please contact Sarah Griffiths, our Seminar Co-Ordinator, on sarah@woodswhur.co.uk who can confirm your place/places and send you joining instructions.

We look forward to seeing you on 25 September 2019.
Woods Whur

The Licensing Act 2003 sets out the various licensable activities for which some form of authorisation under the Act is required. One of the licensable activities listed within the Licensing Act is the sale by retail of alcohol. Unhelpfully, the Act provides no definition of “sale” therefore interpretation of the word should be given its ordinary dictionary meaning which is; “exchange of a commodity for money or other consideration”. Case law has determined that there is no sale if a bona fide gift of alcohol is made to a person, therefore no licence is required as there would be no offence in connection with the sale of alcohol.

Consideration has to be made as to whether alcohol is sold by way of retail sale, where customers can only receive a drink upon purchase of a wedding dress, i.e. a sale. There is case law arguing this point and, broadly, the Courts deem that if payment is required (even when the main sale is not that of alcohol) then it is deemed that a sale of alcohol has taken place and a licence will be required for such a sale to take place. The relevant case that addressed this was a case called Doak -v- Bedford [1964] 2 QB 587. In this case, the defendant held parties at her premises for which £1 payment was made in advance where music and dancing took place and food and drinks (both alcoholic and non-alcoholic) were available. The magistrates acquitted the defendant for the offence of selling intoxicated liquor under Section 120 of the Licensing Act 1953 ( selling alcohol without a licence) but this decision was appealed and it was ultimately held that an offence had been committed. The Judge in the appeal case, Justice Paull, stated: “If I pay money for the right, inter alia, to pick out such goods as I desire from a shelf and make those goods mine, in my judgment when I so pick out such goods, those goods have been sold to me.” There is another case that dates back to 1908, Horgan v Driscoll, which also supports the above appeal case of Doak. The facts of this case concern a lodger paying a boarding house-keeper a fixed sum for board and lodging. Within the price of this included bottles of porter which could be consumed if they so desired. It was held that there was a sale of the porter and the boarding-house keeper was liable for the sale of alcohol without a licence. In the case of Horgan v Driscoll, Lord O’Brien CJ stated; “The fact that there was a mingling in the contract for the supply of porter and other things did not prevent the transaction being a sale”. The legislation has since changed, as we now have the Licensing Act 2003, but the legal principles of interpretation of the definition of retail sale remain.

Penalties for providing alcohol by way of retail sale (i.e. without a licence) fall under Section 136 of the Licensing Act 2003. It is a criminal offence to sell alcohol without a licence and the potential sentence for doing so is liable to imprisonment for a term not exceeding six months or a fine set by the Magistrates’ Court (which is unlimited).

In the instances where bridal shops offer a complimentary alcoholic drink to each prospective customer, regardless of whether the customer will proceed to buy a dress, then this would be classed as a gift and therefore no requirement for a retail sale.

It’s not usually just the bride to be that will attend a bridal shop, they are likely to bring along a number of family and friends to share the special occasion with. So what are the implications of bringing someone under the age of 18 with them and they are provided with a glass of bubbly on arrival? The main offence concerning the sale of alcohol to children is contained within Section 146(1) of the Licensing Act 2003, which sets out that a person commits an offence if they sell alcohol to an individual aged under 18. The key word here, again, is that of ‘sale’. There has to be a sale for a person to commit an offence under this section. It is not illegal to provide alcohol to children under 18, but above the age of 5, at home or at private premises. Although this is the law, it is not recommended that children are readily provided with free alcohol at private premises such as a bridal shop due to the obvious safeguarding and health implications.

It is a common sight for brides to be to make an occasion out of wedding dress shopping and it is up to the bridal shops to understand the law in relation to providing alcohol. Special consideration should be made to those bridal shops that may charge a fee for prospective brides to attend the appointment in exchange for a glass of fizz, as this would most definitely be classed as a retail sale of alcohol and therefore a licence would be required.

Next time you consider cracking open the bubbly with a client, please take care and think about whether this may be classed as a retail sale of alcohol.

I am delighted to announce that we have secured two premises licences at Meridian Water in Enfield for Broadwick Live in conjunction with Venue Lab.

I have been lucky enough to be instructed by Venue Lab in the significant development of their estate over recent years. I was pleased to have secured the Printworks Licence in the former news press hall of the Evening Standard, Daily Mail and Metro Printworks in Canada Water which has gone on to become the iconic venue in South London. Subsequent to that, we secured a premises licence for Exhibition London in the former Victorian Structure which originally was used as an engine house for the Central London Railways. The premises sit within the heart of the Westfield Development in Shephard’s Bush and will become an event space and live music venue.

The vision which my client have shown in relation to these premises caused Enfield Council to approach them to see if there was interest in the redevelopment of Meridian Water in Enfield. Having secured a premises licence for the Field Day Festival to be operated on the site this year, I have recently negotiated hard with all of the responsible authorities to allow for the grant of the 7,000 capacity new premises to be known as the Drumsheds. This will operate as an events space and late night electronic and live music venue, exhibiting all of the usual vision of Venue Lab to convert redundant industrial buildings.

This has been developed in partnership with Enfield and Meridian Water, the UK’s largest regeneration project. A £6 billion investment will transform the site into a thriving hub of creativity, which even includes a new network rail over-ground station at Meridian Water.

The Drumsheds sits at the heart of this huge regeneration project and Broadwick Venues and Venue Lab are proud to partner Enfield Council to create this new destination for events, culture and the arts in North London.

I was involved from initial instructions to attending before the licensing sub-committee to secure the premises licence for the Drumsheds.

I have seen a recent increase in concerns over “bottomless brunches” or “bottomless prosecco” promotions at a number of licensed premises. This resulted in a recent case where the Police were threatening to prosecute an operator client of mine for breach of a mandatory condition. However, these were quality premises, offering food with the promotion, with no suggestion of any negative impact from what had become a popular attraction. The premises were well managed, the promotion was well supervised and there had been no reports of drunkenness as a result of the promotion. We entered into a long series of discussions with the Police who were very uncomfortable about the bottomless brunch. We helped the operator draft a guidance document for all staff to be trained on how to manage the promotion and finally the Police accepted that this was not an irresponsible promotion.

Where are we then with how irresponsible promotions are defined and should be avoided by operators? The principle of an irresponsible promotion was introduced into licensing legislation through the mandatory conditions attached to all premises licences which authorise the sale of alcohol.

The Licensing Act 2003 (Mandatory Licensing Conditions) Order 2010 (“the 2010 Order”) set out five new conditions that apply to all premises in England and Wales authorised to supply alcohol under a premises licence or club premises certificate. The first three of these conditions came into force on 6 April 2010. This included the condition dealing with irresponsible promotions.

The Home Office issued a specific Guidance document in 2014 which helps with understanding the reasoning behind these conditions and this can be found at the link below:

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/350507/2014-08-29_MC_Guidance_v1_0.pdf

The relevant sections of the Guidance document state as follows:

The 2014 Order states that the responsible person must ensure that staff on relevant premises do not carry out, arrange or participate in any irresponsible promotion, as listed below, where that promotion is carried on for the purpose of encouraging the sale of alcohol on the premises.

Drinking games

This includes any game or activity that requires or encourages (or is designed to require or encourage) individuals to drink a quantity of alcohol within a time limit, or to drink as much as possible. This does not include “drinking up time”, shortly before the end of licensed hours.

The application of this prohibition is not subject to a judgement of risk, and so any game or activity that falls within it would be in breach of the condition.

Examples of this type of activity include drinking relay races and drinking challenges based on quantity.

Provision of alcohol free or for a fixed or discounted fee. This prohibits the provision of an unlimited or unspecified quantity of alcohol for free or for a fixed or discounted fee if there is a significant risk that such provision would undermine a licensing objective.

Rewards for consumption of alcohol

The new conditions ban the provision of free or discounted alcohol or any other thing as a prize to encourage or reward the consumption of alcohol over a period of 24 hours or less if there is a significant risk that such provision would undermine a licensing objective.

‘Significant risk’

The application of these prohibitions is subject to an assessment in any case about whether the activity in question would give rise to a significant risk of breaching one or more of the four licensing objectives:

  • The prevention of crime and disorder;
  • Public safety;
  • The prevention of public nuisance; and
  • The protection of children from harm.

Factors that may be considered when deciding if a promotion is irresponsible may include:

  • Type of promotion:

o How big is the discount?

o For how long does the discount apply?

  • Potential customers:

o Is there likely to be a significant increase in the number of customers?

o What is the profile of the customer base?

  • Type of premises:

o Is it a high-volume vertical drinking establishment or a community pub?

  • History of premises:

o Have previous promotions been handled responsibly?

o Has the licence been reviewed recently?

o Have sufficient security measures been taken for any potential increase in the number of customers?

If there is any doubt as to whether the promotion the operator is planning to run falls foul of this new mandatory condition, The Home Office strongly recommends that the operator discusses its proposals with its local licensing authority and/or police before running the promotion.

So the Guidance is pretty helpful in setting out what the Home Office believes are factors which will indicate whether the promotions are irresponsible. This is a judgement call. It does not mean that, per se, a bottomless brunch or prosecco hour is automatically irresponsible. The criteria above, if followed, can ensure there is not a “significant risk” to the licensing objectives being compromised and therefore the promotion would be legitimate and permissible.

The most recent version of the S182 Guidance also deals with the issue.

Para 10.39 states:

Under this condition, the “responsible person” (defined in the 2003 Act as the holder of a premises licence, designated premises supervisor, a person aged 18 or over who is authorised to allow the sale or supply of alcohol by an under 18 or a member or officer of a club present on the club premises who can oversee the supply of alcohol) should be able to demonstrate that they have ensured that staff do not carry out, arrange or participate in any irresponsible promotions. An irresponsible promotion is one that fits one of the descriptions below (or is substantially similar), is carried on for the purpose of encouraging the sale or supply of alcohol for consumption on the premises. The aim of the condition is to prohibit or restrict promotions which encourage people to drink more than they might ordinarily do and in a manner which undermines the licensing objectives.

Drinking games

10.40 Drinking games which require or encourage individuals to drink a quantity of alcohol within a time limit, or drink as much alcohol as possible within a time limit or otherwise, are prohibited. For example, this may include organised ‘drink downing’ competitions. This would not prevent the responsible person from requiring all drinks to be consumed or abandoned at, or before, the closing time of the premises. Nor does it necessarily prohibit ‘happy hours’ as long as these are not designed to encourage individuals to drink excessively or rapidly.

Large quantities of alcohol for free or a fixed price

10.41 Irresponsible promotions can include the provision of unlimited or unspecified quantities of alcohol free or for a fixed or discounted price, where there is a significant risk that such a promotion would undermine one or more of the licensing objectives. This includes alcohol provided to the public or to a group defined by a particular characteristic, for example, a promotion which offers women free drinks before a certain time or “all you can drink for £10”. Promotions can be designed with a particular group in mind (for example, over 65s). A common sense approach is encouraged, which may include specifying the quantity of alcohol included in it or not targeting a group which could become more vulnerable or present a greater risk of crime and disorder as a result of excessive alcohol consumption.

Prizes and rewards

10.42 The sale, supply or provision of free or discounted alcohol or any other item as a prize to encourage or reward the purchase and consumption of alcohol can be within the definition of an irresponsible promotion, where there is a significant risk that such a promotion would undermine one or more of the licensing objectives. This may include promotions under which free or discounted alcohol is offered as a part of the sale of alcohol, for example, “Buy one and get two free” and “Buy one cocktail and get a second cocktail for 25p”. This includes promotions which involve the provision of free or discounted alcohol within the same 24 hour period.

So the original Guidance and the most recent Statutory Guidance is particularly helpful. If properly managed and supervised, then these are nor irresponsible promotions. The key phrase from the Guidance is perhaps, “A common sense approach is encouraged, which may include specifying the quantity of alcohol included in it or not targeting a group which could become more vulnerable or present a greater risk of crime and disorder as a result of excessive alcohol consumption.”

So, think it through. Plan ahead. Advertise carefully. Have a training and supervision plan prepared. Make sure what you are doing does not pose a significant risk to the licensing objectives and everything should be fine. Should you encounter any difficulties as an operator or an enforcement agency, then do not hesitate to contact me to discuss the issues that have arisen.

There are two certainties in life as a licensing lawyer. The first, enquiries for Temporary Event Notices for Christmas extensions are generally received on the 15 December. The second is the sun comes out in June and clients then enquire about using outside areas.

I find it particularly frustrating that a lot of operators do not give any forward planning in relation to using outside areas. We have had a significant number of enquiries from operators in the last few weeks relating to using outside areas as the weather has improved.

The process can be torturous, lengthy and needs forward planning. I was pleased to see that in the recent April 2018 version of the Section 182 Guidance document, issued by the Home Office, that the issue of outside areas has been covered, for the first time.

Beer gardens or other outdoor spaces

 8.35 Applicants will want to consider whether they might want to use a garden or other outdoor space as a location from which alcohol will be consumed. The sale of alcohol is to be treated as taking place where the alcohol is appropriated to the contract. In scenarios where drink orders are taken by a member of staff in the garden or outdoor space and the member of staff then collects the drinks from the licensed premises and returns to deliver them to the customer this would be treated as an off-sale and any conditions that relate to off-sales would apply.

8.36 In such cases it will be not necessary to include the garden or other outdoor space on the plan as part of the area covered by the premises licence. However, it will be necessary for the applicant to include the garden or other outdoor space on the plan as part of the area covered by the premises licence if the intention is to provide a service whereby drinks are available for sale and consumption directly from that area (i.e. the provision of on-sales). This would apply in the case of an outdoor bar or a service whereby a member of staff who is in the garden or outdoor space carries with them drinks that are available for sale (without the need for the staff member to return to the licensed premises to collect them).

8.37 If the beer garden or other outdoor area is to be used for the consumption of off-sales only, there is no requirement to show it on the plan of the premises, but the prescribed Revised Guidance issued under section 182 of the Licensing Act 2003 I 55 application form requires the applicant to provide a description of where the place is and its proximity to the premises.

This is a helpful starting point. We have had to argue with some Licensing Authorities on the issue of outside areas but the change in the introduction of paragraphs 8.35 to 8.37 clarifies the position.

For the avoidance of doubt:

  • The sale of alcohol is to be treated as taking place where the alcohol is appropriated to the contract;
  • If drink orders are taken by a member of staff in the garden or outdoor space and collects them from the licensed premises, this is an off-sale;
  • In these cases it is not necessary to include the garden or outdoor space in the licence plan; and
  • If there is an intention to have a service position where drinks are available for sale and consumption from that area then the space would need to be included on the plan as there would be a licensable activity.

That clarifies the position in relation to plans and what needs to be submitted with an application.

However, if premises are already licensed and the operator wishes to look at using an outside area there are a number of issues that need to be considered. These are:

  • Does the licence authorise the sale of alcohol for consumption off the premises? If not, a variation will need to take place and this will be a full variation (28 days’ notice period);
  • Are there any conditions on the premises licence dealing with how off-sales are to be allowed? It may well be that these would need to be varied by way of a full variation (28 days’ notice period);
  • Is the area that you intend to use for consumption in the ownership of the operator? If it is there would need to be a further application made; and
  • If the area isn’t within your demise and, instead, is on Local Authority highway land, there would need to be an application for a pavement licence (in some places called a tables and chairs licence).

Pavement licence/tables and chairs licence

This is where the process can slow down significantly. If you have an aspiration to use an outside area which is on Local Authority land then you need to be thinking of making your application well before the weather improves. Most Authorities now have particularly prescriptive application processes which can take a considerable amount of time (up to two months). Often, applications have to go before a Panel of the Local Authority. The application process will no doubt be prescriptive, in that it will ask for artists’ impressions of the area, showing where any provision of seating and screening will be situated. More importantly, there will be a requirement to provide proof of public liability insurance and ensure that the furniture/screening complies with any requirements that the Local Authority may impose.

It is at this stage that significant delays might arise in reaching agreement with the Local Authority and ensuring that all of their relevant policies are complied with.

Most Authorities have now cottoned on to how much they can charge for pavement licences and we have seen a significant increase in the cost of these licences in areas where the Local Authority know that they will be profitable.

I would urge all operators to consider consulting a licensing lawyer in good time to ensure that permissions are not delayed until the nights are drawing in.

I would be delighted to answer any specific questions on outside areas should you have any.