The good old days of the Transfer Sessions at the Magistrates’ Court…12 protection orders, 8 transfers, 2 new grants, a section 20 consent for structural alterations and 3 final orders…then off for a nice fat lunch on Greek Street.

The fitness and propriety test to hold a justices licence…let me see if I can remember? The marvellous 5 minutes of coaching with your client as to who you could not sell alcohol to. Try and get listed 4th or 5th so your client could listen to the same questions over and over again to hone their answers. “Not to serve to children or known prostitutes and police officers in uniform.” You will do….licence granted.

What happened if your client wasn’t proficient in English? Easily sorted (and this happened in Leeds)…if I am smiling at you when I ask you the question the answer is yes…if I am frowning at you then the answer is no. Perfect, licence granted for a new Italian restaurant.

In truth it was all a bit of slapstick but not really a test of the fitness and propriety to hold a licence.

What’s this they say…the Licensing Act. Let us split the licensing system in two and have a premises licence and a portable personal licence. Interesting, and should have been a huge improvement. Notice SHOULD.

It was a golden opportunity but in real terms has not delivered what it could have done.

The system:

Applying for a new licence, if you are 18+, have no relevant convictions and have passed an accredited course then you get a licence. No discretion, the authority has to grant the licence. This then gives you the ability to become a designated premises supervisor and authorise the sale of alcohol.

On the whole this is a system that works well for a properly resourced operator, but issues are increasing with the unscrupulous operator, often in the off trade.

A recent example involved a new premise licence application I have been made aware of for a shop. It was suggested that a personal licence course was taken at the DPS’ house, the exam was passed and the fee was paid. The applicant was told that their personal licence would be sorted out with the Licensing Authority.

It was suggested that the course and exam had been carried out by an accredited trainer from an accredited company. The awarding body has been contacted and they conducted a site visit at the registered office of the training company. They were notified that they had delivered the course because ‘the operator was desperate’. He was then asked if he held any files on attendees for the courses he ran, he said he had none and does not keep them.

The awarding body is now conducting a full investigation and there is a strong likelihood that the organisation will now lose its accreditation.

Unfortunately, this is not the first time I have come across a situation like this and I have some real concerns about the number of false certificates being issued to allow a personal licence to be granted. I had a very similar example to this when I was representing the London Borough of Newham on a Licensing Act appeal against a revocation. In this case the DPS and Premises Licence Holder had such a poor grasp of English that the Judge found a real inability to promote the Licensing Objectives and we found that the personal licence had been granted after a training certificate had been provided suggesting the DPS had passed the exam in his first language with the aid of a translator. Again, it transpired that the qualification had been fraudulently acquired and the training centre lost its accreditation.

We have just received information about another fraudulent case. During a licence enforcement visit/compliance check at some problem premises it became apparent that the premises licence holder and DPS understood very little English, if any. All conversations were through a relative and when he was asked to explain the conditions on his premises licence and where he got his training from for his personal licence he could not answer. The enforcement officers then telephoned the training provider shown on his certificate and expressed a view regarding his serous lack of English, and his inability to read English and asked in those circumstances how did he complete the course and exam. The answer given was that he had an interpreter present to help him with the course and the examination, which is classed as a ‘reasonable adjustment’.

The awarding body was contacted to ask the question about the use of interpreters during the courses and examinations and they confirmed that this is not allowed and pointed to their codes of practice.

This appears to be happening far too often and the results are only coming to light when problems are exhibited at premises. Maybe we haven’t moved any further on with the Personal Licence regime than the old days of smiling and frowning when asking questions of your lovely Italian chef client, who, by the way is still knocking out fantastic authentic Italian food and a lovely glass of red 20 years later!

The law relating to copyright extends to the protection of musical and artistic work as well as films, sound recordings and broadcasts. There have been numerous articles in recent years on the  discussions with PPL and PRS but as from June 2016 there was also a significant change to the legislation relating to the showing of films. The only reason I am now writing an article on this as opposed to in June 2016 is that it would appear that there has been a period of grace in which the new legislation was not strictly enforced. This has now ended. 

Section 72 of the Copyright Designs and Patents Act 1998 allowed for the public showing or playing of a broadcast by organisations if an entry fee was not charged. The law on this exemption has now changed, principally affecting the way in which organisations can broadcast films in public.

A television broadcast, such as one on the BBC or ITV, contains a number of different copyrights, including the broadcast itself, the creative work, the sound recording and the film. In sports matches shown on television, the music and logos are protected as created works, as is the recording of the match, and copyright gives rights holders the exclusive right to authorise or prevent the works from being communicated. We witnessed a number of prosecutions in recent years by those, notably pubs, showing football matches without the authorisation to do so.

Section 72 specifically allowed  premises with  free public access to show television broadcasts without the permission of certain copyright owners. This applied to film, broadcast and certain sound recording copyrights. This meant that if you had the BBC on in licensed premises and there was a film being shown, as long as access to your premises was free of charge, then this was covered by the exemption.

Following an amendment, however, film has now been removed from the scope of this exemption. This means that those wishing to show broadcasts in public may need to gain the permission of film rights holders to show the film contained within a broadcast, as is currently the case for certain other rights. Separate licences may also be required from PRS and PPL in relation to music contained in the broadcast. Section 72 does continue to apply to the broadcast itself, so as long as you have copyright permissions from the relevant copyright owners, no additional permission to show the broadcast is required from the broadcaster.

The change only affects the showing or playing of broadcasts in public by organisations and premises that do not charge an entrance fee. Free to air channels do not charge commercial premises for showing television programmes to the public. Pubs and other premises showing free to air broadcasts may need to check with the broadcaster that they are permitted to show the films contained within a broadcast in the same way that they need to understand whether they have permission to play any other work such as music. The only additional licence required to show free to air broadcasts at the moment will be the PRS and PPL permissions.

 

Bookmaker Bet365 saw further negative coverage in the national press last week after it was forced to admit “acting in error”, over a year into a dispute with a customer involving £54,000 of unpaid winnings.

The bettor, whose identity is known to The Guardian newspaper but which it has not revealed, according to its coverage opened an account with Bet365 on 16 April and deposited £30,000 the following day, when she promptly lost £23,000 on a series of bets on horse racing. On the same day, she received an email from the bookmaker informing her that her maximum bet limit had been increased. The following day she placed further bets with her remaining £7,000 and saw an upturn in her fortunes, winning a total of £47,000, which took her balance to £54,000. At that point, Bet365 contacted her again by email to say that, as a result of a “trading decision”, her account would be restricted to a maximum stake of £1 on racing bets, although she was welcome to gamble as much as she wished on gaming products.

Disappointed by what she perceived as a refusal by the bookmaker to accept her bets, the punter requested that her balance be transferred to her debit card. Although it confirmed on 27 April that her identity had been “fully verified”, Bet365 has so far refused to do, despite a series of requests over the following months. The customer therefore lodged a complaint with the independent dispute adjudicator IBAS, which has been considering the case since November.

The Guardian, which, it is fair to say, generally has a fairly anti-gambling stance, published a piece in June which was highly critical of Bet365, pointing to increasing frustration in recent years on the part of bettors surrounding restrictions being placed on their bets by bookmakers. It quoted figures from the Horserace Bettors Forum showing that as many as 20,000 online accounts had been closed in the first six months of 2016 because, said the paper, “they were not sufficiently profitable for the operator”. It also quoted Paul Fairhead, a campaigner on gambling issues whose Twitter account, @BoycottBetFred, it described as “a rallying point for punters with grievances against bookmakers”. Mr Fairhead levied a number of criticisms against operators in relation to delays in withdrawing balances, saying that “they are holding on to the money in the hope that the problem goes away”. He called for the Gambling Commission to step in to implement and enforce “standardised and streamlined” verification systems across the industry.

The Guardian had another opportunity to have a go at Bet365 last week, when it emerged that the company’s systems had sent an automatically-generated email to the customer with whom it is in dispute, warning her that it could (or would, depending on which paragraph of the Guardian report one chooses to believe) charge a 5% “ongoing administration fee” on her account every 28 days, until the balance reaches zero. This is because the account has been marked as “dormant” following a period of precisely 12 months of inactivity, despite the dispute still being subject to the IBAS investigation, with the result that the account remains frozen.

Bet365 immediately confirmed to the customer that its initial email regarding the administration fee had been “submitted in error” and stated that it would not charge any form of fee “while we are still awaiting for you to sign and return the letter which we have submitted to you”. The coverage does not make it clear what the letter relates to, but it is believed that it is a request for the customer to sign up to new terms and conditions governing her account, something she is refusing to do while her funds remain frozen.

This error on Bet365’s part is unfortunate because, although the operator has promptly admitted its mistake, this has given the Guardian an opportunity to attack administration fees charged on dormant accounts across the industry. The paper points out that such fees are commonplace, and that their amounts, and the period of inactivity after which they apply, vary widely from one bookmaker to another.

Had Bet365 applied its “ongoing administration fee” in this case, the amount deducted from the customer’s balance in the first month would have been approximately £2,700. The Guardian consulted its go-to gambling industry critic again, and Paul Fairhead was quick to go on the record as saying that such a fee would have been “almost impossible to justify”, and called for maximum fees to be set – presumably by the regulator.

Leaving the issue of the gaffe on the administration fee to one side, the issues arising from this case are of significance to the industry – and many will be awaiting the IBAS adjudication, which is expected within a month, with interest. The time it is taking to determine the case is unusually long and, given the lack of any substantive detail about the dispute in the Guardian’s reporting and any disclosure of the correspondence between the parties, it is difficult to know what the real issues are. Bet365 has also refused to comment on the case, via The Guardian or otherwise.

Bet365 has confirmed to the customer that her identity had been “fully verified”, and the fact that the company was willing to allow her to gamble far higher amounts than the £1 limit, applied to her racing bets, on other products would appear to suggest that the operator was satisfied as to the source of funds. In addition, the customer’s bank has (according to The Guardian) assured her that there are “no concerns about money laundering through her account” (although we only have this third-hand). Further, reports state that there is “no dispute about the validity of her winning bets”. There is of course the possibility that the customer concerned, albeit unwittingly, laid bets on races the outcomes of which were judged by the operator to be suspicious, or “fixed”.

The truth will not emerge, if indeed it does, until the outcome of the IBAS investigation. In the meantime, my view is that it is all too easy – and unjustified – for media outlets such as The Guardian to criticise gambling operators for delays in paying out withdrawals from customer accounts. Had this case simply been about the bettor being “unprofitable”, that would explain the limit on bets, but not the refusal to allow the withdrawal to take place. That, and the length of the IBAS investigation, suggest to me that there is more to this case than meets the eye.

The Guardian accuses gambling operators of “stringing out pay-outs for weeks, or even months”. In so doing, perhaps it neglects the fact that the industry is one of the most heavily-regulated sectors in the UK. The industry has to comply with all the stringent requirements applying to money-laundering and suspicious transactions, match-fixing, and collusion and cheating. In addition, operators (and this is of relevance to the criticisms raised relating to administration fees) are subject to a requirement to ensure that their terms and conditions are fair, and that they otherwise meet the licensing objective of ensuring that gambling is provided in a fair and open way.

We await the outcome of the IBAS adjudication – and any response or reaction from the Gambling Commission – with interest and will update you in a future edition of our newsletter in due course.

The Home Office has issued revised Guidance under Section 182 of the Licensing Act 2003 and it can be found at the following link:

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/607237/182Guidance_05_04_17.pdf

This is one of the longest gaps that there has been in between revised editions, with the previous Guidance having been in place since March 2015.

The document grows! Its previous incarnation was 122 pages long and the new version has expanded to 147 pages. One of the key areas of change has been to include the amendments brought about by the Immigration Act, as discussed in my other article in this newsletter.

The other key change is the introduction of Chapter 12, which deals with Summary Reviews. I have long been a proponent of introducing Guidance on Summary Reviews into the statutory document.

We had, up until this version of the Section 182 Guidance document, not had any statutory guidance from the Home Office on the most impactful of enforcement powers within the legislation. There had been a non-statutory guidance document created by the Home Office which had been criticised in the High Court case of Sharanjeet Lalli v Commissioner of Police for the Metropolis and LB Newham [2015] EWHC 14 (Admin). In this case the High Court Judge was critical of the drafting of the document and pointed out its inaccuracies. However we now have statutory Guidance under Chapter 12, which hopefully will assist all parties in dealing with Summary Reviews. Summary Reviews were introduced into the Licensing Act 2003 by the Violent Crime Reduction Act. However there are now other key changes and these have been the subject of advice through the Guidance document. The new chapter sets out the process in clear terms with Guidance from the Home Office, for example, as to when a senior officer should consider signing a certificate because he feels that the premises the subject of a Summary Review are associated with serious crime, serious disorder or both.

The Chapter goes on to deal with what the Licensing Authority needs to do in considering Interim Steps, pending the determination of the final review hearing. Paragraphs 12.29 and 12.30 deal with Review of the Interim Steps under Section 53D, which is a change to the Licensing Act 2003.

Paragraph 12.29 states that “the Licensing Authority’s determination does not have effect until the end of the 21 day period given for appealing the decision, or until the disposal of any appeal that is lodged. To ensure that there are appropriate and proportionate safeguards in place at all times, the Licensing Authority is required to review any Interim Steps that it has taken that are in place on the date of the hearing (for the final review) and consider whether it is appropriate for the promotion of the licensable objectives for the steps to remain in place, or if they should be modified or withdrawn. The review of the Interim Steps should take place immediately after the determination under Section 53C has been reached. In making its decision the Licensing Authority must consider any relevant representations made.”

Paragraph 12.30 states that “in conducting the review of the Interim Steps the Licensing Authority has the power to take any of the steps that were available to it at the initial stage (see paragraphs 12.13). Any Interim Steps taken at the review hearing apply until –

  1. the end of the period given for appealing against the decision made under Section 53C (21 days),
  2. if the decision under Section 53C is appealed against, the time the appeal is disposed of, or
  3. the end of a period determined by the relevant Licensing Authority (which may not be longer than the period of time for which such Interim Steps could apply under (a) or (b) above).”

At paragraph 12.31, the Guidance deals with the right of appeal against review of the Interim Steps decision, where either the licence holder or the Chief Officer of Police may appeal against the decision made by the Licensing Authority concerning its review of the Interim Steps to a Magistrates’ Court within 21 days of the Appellant being notified of the decision by the Licensing Authority. This appeal must be heard by the Magistrates Court within 28 days, beginning on the day on which the Appellant lodged the appeal.

A flow diagram of the Summary Review process is then highlighted at page 80 of the Guidance, which is helpful. These are key changes to the Summary Review procedure which encapsulate the changes that have been made to the Licensing Act 2003 and in particular the introduction of the necessity for the Licensing Authority to deal with Interim Steps that exist after the final review decision.

Chapter 2 “the Licensing Objectives” of the Crime and Disorder Guidance has been amended to include the directive that Licensing Authorities should work with the Home Office Immigration Enforcement, as well as the police, in respect of prevention on immigration crime including the prevention of illegal working in licensed premises.

There is a new paragraph 3.7 introduced dealing with wholesale of alcohol which highlights “from the 1 April 2017, businesses which sell alcohol (for example, retailers of alcohol and trade buyers) will need to ensure that the UK wholesalers that they buy alcohol from have been approved by HMRC under the Alcohol Wholesaler Registration Scheme (AWRS). They will need to check their wholesaler’s Unique Registration Number (URN) against the HMRC online database, which will be available from April 2017. This an ongoing obligation and if a business is found to have bought alcohol from an unapproved wholesaler, they may be liable to a penalty, or could even face criminal prosecution and their alcohol stock will be ceased. Any trader who buys alcohol from a wholesaler for onward sale to the general public does not need to register unless they sell alcohol to other businesses. This is an additional requirement that has been added into the legislation and dealt with in the Guidance document.

A new section is introduced incorporating paragraphs 3.21 to 3.33 which is headed “late night refreshment exemptions based on designated locations, premises types and times”. This is a further deregulation introduced into the licensing legislation and the details of areas that can be designated are carefully set out in the Guidance.

Chapter 4, dealing with personal licences has been amended to incorporate the additional requirements for proof of entitlement to work in the UK, as amended by the Immigration Act 2016. My previous article deals with this and the Guidance document is clear in what needs to be undertaken to satisfy these additional tests.

Paragraph 4.5 of the Guidance deals with the introduction of the Police and Crime Act 2017 power for Licensing Authorities to revoke or suspend personal licences, with effect from the 6 April 2017. This is a discretionary power. When a Licensing Authority has granted a personal licence and becomes aware that the licence holder has been convicted of a relevant offence, foreign offence or been required to pay an immigration penalty, the Licensing Authority may revoke the licence or suspend it for a period of up to six months. This has been introduced into the legislation due to the fact that the Magistrates were not using their powers when relevant prosecutions were taken. This is an additional ability for Licensing Authority to review those cases and determine in the circumstances whether a suspension or revocation should be considered and paragraphs 4.45 to 4.50 deal with the procedure in clear terms.

Paragraph 4.51 highlights that the schedule of relevant offences under Schedule 4 of the Licensing Act 2003, which details the relevant offences to be considered has been amended as of the 6 April 2017 and those amendments need to be borne in mind.

Paragraph 8.7 of the Guidance document introduces the Home Office Immigration Enforcement Officer as a responsible authority for making representations against applications for premises licences and also gives them the power to review licences.

There is then a new section introduced “entitlement to work in the UK” which introduces new paragraphs 8.35 to 8.37 and highlights the measures that need to be taken to provide documentary proof of right to work.

An annexe has been created at pages 145 to 147 which deals with the documents capable of demonstrating an entitlement to work in the UK. This is clearly a critical change in the primary legislation and Guidance and is sure to have ramifications.

I would be delighted to deal with any particular queries that anyone has in relation to the changes to the primary legislation and the Guidance document which have become effective as of April 2017.

 

 

The obvious answer is, of course, a necessity but invariably, in my experience, many operators at best pay lip service to this type of training and at worst ignore it entirely.

Having worked in the service and hospitality industry all of my adult life and been a multiple site operator I understand why compliance training tends to take a back seat to mandatory training such as personal licences but for so many reasons it shouldn’t.

The situation is not helped by government guidance which is a little vague to say the least. For instance regarding Food Hygiene training the Food Standards Agency advice is:

Food business operators are required by law, to ensure that food handlers receive appropriate supervision and instruction/training in food hygiene in line with their work activity and should enable them to handle food safely.

In the UK, food handlers don’t have to hold a food hygiene certificate to prepare or sell food, although many food businesses will prefer that they do. The necessary skills may be obtained through on-the-job training, self-study or relevant prior experience.

UK food hygiene certificates don’t have an expiry date. It is left to the discretion of the food business operator or environmental health officer to decide whether a refresher course is needed. This may be a result of changes to legislation or technological developments in food hygiene.

Not exactly the most assertive advice and certainly not written in a manner that would indicate the serious consequences that can ensue if staff are not trained properly and something goes wrong. These are:

For an individual

Maximum: when tried on a formal charge (indictment):

  • Unlimited fine and /or 2 years’ custody when tried summarily

For offences under The General Food Regulations:

The maximum when tried summarily is an unlimited fine and/or 6 months’ custody

For an Organisation.

Maximum: when tried on a formal charge (indictment):

·         Unlimited fine

 When tried summarily the penalty is an unlimited fine and the offence range is £100 fine – £3 million fine.

These are only the possible legal punishments for breaching food hygiene laws and don’t take into account the long term damage to your business from the ensuing publicity that follows a prosecution.

Food hygiene prosecutions range from breaches found during inspections by a licensed food safety officer (from the local authority in which your business is located) to investigation after a complaint for poisoning or allergic reaction. Allergic reaction is now a common headline and does not just happen to small takeaways. Jamie’s Italian – Jamie Oliver’s Italian restaurant chain – was fined £8,500 after one branch served wheat pasta to a woman who had told three members of staff that she had a wheat allergy. She was violently sick after visiting the restaurant and suffered a massive allergic reaction.

First Aid is also an area of legislation that is at times a little unclear as to what is required of the operator.

HSE Guidance:

How many first-aiders are needed?

The findings of an employer’s first-aid needs assessment will help them decide how many first-aiders are required. There are no hard and fast rules on exact numbers and all the relevant circumstances of your particular workplace should be taken into account.

Who is an appointed person?

When an employer’s first-aid needs assessment indicates that a first-aider is unnecessary, the minimum requirement is to appoint a person to take charge of first-aid arrangements. The roles of this appointed person include looking after the first-aid equipment and facilities and calling the emergency services when required. They can also provide emergency cover, within their role and competence, where a first-aider is absent due to unforeseen circumstances (annual leave does not count).

Do appointed persons need to undertake first-aid training?

To fulfil their role, appointed persons do not need first-aid training. However, emergency first-aid training courses are available.

Once again the government guidance doesn’t exactly indicate the issues that can arise for a business if staff don’t know what to do in an emergency.

These are only two examples of Health and safety legislation that affect the hospitality trade but others including fire safety follow the same basic ethos of self assessment by safety audit. This means the responsibility is yours to ensure that your staff and customers are safe. Not only from a commercial business perspective but I would suggest that purely from a moral point of view these responsibilities should be taken seriously. The people they are designed to protect are your Mum, Dad, wife, husband or child.

Training is the best means of ensuring that you steer clear of any breaches of HS legislation and the swingeing fines and possible imprisonment and more importantly you don’t have to live with a potential injury or worse on your conscience because you tried to save a couple of pennies.

The Importance of Compliance Training – Protecting Your Company

Compliance Training is essential to ensuring your employees are educated on the laws, regulations and your internal company policies within your business.

The importance of compliance training cannot be overstated, however, since adherence to all applicable laws and regulations that concern your business is absolutely vital.

In more recent years companies have started recognising the importance of compliance training and have started addressing the issue by creating training plans to cover this.

To talk to someone who can give you practical advice on what is appropriate for your business in relation to compliance training, please give the Innpacked Team a call on 08000 786056.

Please see our next dates in the Leeds area for Personal Licence courses:

Course ID Date of Course Course Area Company ID Course Status
36890 20/04/2017 Leeds Innpacked Available
36891 18/05/2017 Leeds Innpacked Available
36892 22/06/2017 Leeds Innpacked Available
36893 20/07/2017 Leeds Innpacked Available
36894 17/08/2017 Leeds Innpacked Available
36895 21/09/2017 Leeds Innpacked Available
36896 19/10/2017 Leeds Innpacked Available
36897 16/11/2017 Leeds Innpacked Available
36898 21/12/2017 Leeds Innpacked Available

 

On the 6 April 2017 the Home Office issued new Guidance and forms to deal with a proliferation of illegal workers in licensed premises.

Please find a link below for the Guidance and new forms which need to be used from this date.

https://www.gov.uk/government/publications/immigration-bill-part-1-labour-market-and-illegal-working

The Home Office highlights in the documentation that the policy seeks to prevent illegal working in premises licensed for the sale of alcohol and late night refreshment by introducing immigration safeguards into the existing licensing regime. Its aspiration is that the measures will prevent premises and personal licences being issued to individuals who, if resident in the UK, do not have permission to be in the UK or work in the sector and where to grant a licence will be prejudicial to the prevention of illicit immigration, crime and illegal working.

Section 36 of, and Schedule 42 to, the Immigration Act 2016 amend the Licensing Act 2003 and introduce immigration safeguards in respect of licensing applications. These measures were not well circulated in advance of their effective date of the 6 April 2017 for England and Wales.

In real terms the following consequences arise:

  1. Licences will not be granted to those without lawful immigration status or entitlement to work in the UK. As a result of this there are practical implications for those making applications, in that all applications (by individuals irrespective of their nationality or the size of the business they represent) for licences will be required to include documentary evidence of their lawful immigration status and entitlement to carry out work in a licensable activity, and checks will be performed on a non-discriminatory basis. In real terms this has meant that in applications to transfer Designated Premises Supervisors we have now been asked to send identification and confirmation of right to work as part of the application process.
  2. The Secretary of State will be added to the list of existing responsible authorities under the Licensing Act 2003. All applications for personal licences will require the applicant to demonstrate that they are eligible to carry out work in the licensed business and they must declare any previous criminal offences, together with immigration offences (including receipt of civil penalties). Where the applicant declares in their application for a personal licence a previous immigration offence or a comparable foreign offence, the relevant Licensing Authority will forward the application to the Home Office for further consideration. The Home Office will decide whether to make representations to the Licensing Authority, in their status as a responsible authority.

Where it is necessary to prevent illegal working and immigration crime, the Secretary of State (Immigration Enforcement) will submit to the relevant Licensing Authority an objection to the grant of a licence, or request that conditions be applied to a premises licence. Immigration Enforcement may also request the review of an existing premises licence as a result of enforcement activity which identifies the commission of immigration offences or where the holder of a licence issued before the 6 April 2017 no longer has immigration permission to work. In all cases it is the Licensing Authority that makes the decision on the licence application or review, having considered any representations. The measures do not change the existing process of licensing hearings and appeals.

  1. Section 179 of the Licensing Act 2003 in relation to rights of entry to investigate licensable activities has also been amended by the 2016 Act to align the power of entry of an immigration officer with that of a licensing enforcement officer. This power of entry will be used to investigate illegal working following receipt of intelligence and will facilitate joint working operations of immigration officers with licensing enforcement officers, the police and bodies involved in the inspection of licensed premises.
  2. The new measures will ensure that, for those licence holders who immigration status in the UK is time limited, their licence, if issued on or after the 6 April 2017, will lapse at the point that their immigration permission and their entitlement to work in licensable activities comes to an end.

Application forms have been amended in Regulations: the Licensing Act 2003 (Miscellaneous Amendments) Regulations 2017 to include a requirement to provide details of the date of birth, nationality and evidence of an entitlement to carry out work in the licensable activity with the application. These evidential requirements are broadly similar to existing right to work checks, which have been in place since 2006, and are set out in the application forms.

This has immediately had an impact in our office as our forms have had to change and we have had to request the additional information that the change in legislation has brought about.

This could potentially create delay in applications and is a factor which should be borne in mind when taking instructions. We are presuming that Licensing Authorities have had better notification of these changes than we have.

The House of Lords Select Committee on the Licensing Act 2003 has published its report, nearly a year after being asked to scrutinise the Act. There are a significant number of far-reaching recommendations in the report. A summary of the findings in the report is as follows:

  • To merge licensing committees with planning committees, urging the Government to trial this vision going forward.
  • Close coordination between licensing and planning systems with much more crossover between the respective legislation.
  • Introduction of the “agent of change” concept to protect residents and businesses from the consequences of new development.
  • Planning inspectors to hear licensing appeals.
  • Minimum unit pricing in England and Wales should follow any introduction in Scotland if proven to reduce excessive drinking.
  • Government should seek means to control excessive alcohol consumption through taxing and price.
  • Licensing Authorities to publish reasons when cases are settled out of court.
  • A mandatory set of minimum training requirements for Councillors to be published.
  • The Section 182 Guidance to lay out the structure and process for hearings.
  • The requirement for applications to be advertised in a newspaper should be removed.
  • Local Authorities to have the power to object to Temporary Event Notices.
  • Clarification on Section 19 Closure Powers should be incorporated in the Section 182 Guidance.
  • There should be a discretion to impose an immediate effect on decisions at a review hearing.
  • EMROs should be repealed.
  • Greater scrutiny of the effects of the late night levy with possible repeal if the current proposed changes, yet to be enacted, do not work.
  • Fees should be set locally, not nationally.
  • Enforcement of penalties for sales of alcohol to a person who is drunk (Section 141) should be taken more seriously.

The Government is now charged with scrutinising the report of the Select Committee and could respond within two months of its publication. Once the Government has responded there will be a debate in the House of Lords, at which time the Committee Chair will comment on the Government’s response and this is likely to take place at a debate in October.

One would expect to see the trade bodies now coming out to lobby Government on anything in their response which they feel could have a negative effect on the sector.

The recommendations are significant and could lead to a wholesale change in the licensing system if adopted in significant part.

We will of course monitor the process of this through the Summer and into the Autumn and report.

The full report of the Select Committee can be found at:

https://www.publications.parliament.uk/pa/ld201617/ldselect/ldlicact/146/14602.htm

 

 

Leeds City Council changed their policy for the licensing of Sexual Entertainment Venues (SEV) in 2013. A cap of four was introduced, and only three of the then existing six gentleman’s clubs/lap dancing bars had their licences renewed. As a result, there has been one licence available in Leeds which has been keenly sought. The Leeds City Council’s licensing of Sex Establishments Statement of Licensing Policy is prescriptive as to where licences of this nature can be issued and they must not be near properties with sensitive uses or in sensitive locations.

After lodging an application for Tokyo Industries at the former Townhouse premises on Crown Street in Leeds to be called the Black Orchid, I worked with Philip Kolvin QC to prepare and present a successful application before the Leeds Licensing Authority. This was a significant achievement when set against the backdrop of 78 objections and a petition of 200 plus signatories against the premises being used as a gentleman’s club/lap dancing bar. Many of the objectors attended the hearing but Philip Kolvin QC was able to persuade the Authority to grant the licence notwithstanding such a high level of opposition, including the local MP, residents from a close residential block, a 24 hour gym, commercial developers and the operators of the competitors Purple Door.

Our client, Tokyo Industries operates 32 venues in the UK employing over 2000 people, and already operates an SEV premises with the same name in the heart of the historic city centre of York. Those premises are close to residential properties and operate near to the Hilton Hotel in York.

We submitted on behalf of the Applicant that this was the ideal location for an SEV as it was in the night time economy and was going to be operated at the first and second floor with a new quality restaurant being established in the ground floor of the premises. The entrance to the gentleman’s club and lap dancing bar was to be moved down Assembly Street via a discreet entrance and there would only be one sign, which would only be visible when the premises were open, from 10pm. There was to be no sexual imagery or language on the advert and a first floor balcony smoking area which would be screened off from the public would be created. The Applicant was confident that it could operate without conflict with neighbours. Many of the objectors were from a close residential block at 2 Crown Street buildings and other objectors quoted the night time use of the gym and the close proximity to the historic listed building of the Corn Exchange.

Philip Kolvin QC highlighted to the Committee the following key points:-

  1. The policy states that the city centre is the only appropriate location for SEVs, the number is set at four provided the premises are not near premises with sensitive uses or in sensitive locations. This would be the fourth and final licence if granted.
  2. In relation to locations, the public survey for the policy highlighted 11 areas and the Council had carried out public consultation regarding those 11 areas. The results of that consultation, contained in the policy, showed that the 11th area which was not regarded as sensitive was the Call Lane/The Calls/Assembly Street area – precisely where these premises are situated.
  3. We pointed out that the police and the Local Authority had not objected to this application and were not opposed to it whereas there had been objections to previous applications to secure the fourth licence.
  4. Our argument was that in The Calls/Assembly Street, all buildings are near something that might be regarded as “sensitive”. For example, there is the Corn Exchange or the residential blocks of flats. Philip Kolvin submitted this was not a residential area as defined by the Policy and was less residential than York Place – where two of the existing licences trade. He highlighted this was not a retail shopping area, although there was shops with retail use nearby.
  5. Our final point was that this was a late night entertainment area in accordance with the policy and was the most acceptable in the public’s consideration as shown by responses to the consultation.

Many objectors attempted to raise concerns about the close proximity to the Corn Exchange, which is a listed building. We highlighted that it was not the age of the building which was the issue but the use. The use of the Corn Exchange was not commemorative and has day time use only, which would be unaffected by the SEV premises, which would only be able to open from 10pm. Philip Kolvin argued that it would not be inconsistent with what the policy is trying to achieve.

Having heard all of our submissions and those of the objectors, the Licensing Authority granted the licence. Having heard from all parties, the Committee believed that the application would not infringe the policy and therefore the fourth licence should be granted.

I am of course delighted that we have secured the fourth licence for one of our key operator clients. Since the policy changes in 2013 I have advised on countless buildings where I have had to tell the client not to apply because the premises infringed the policy. Lap dancing bars or gentleman’s clubs, or whatever you want to call them, get significant opposition when they first apply for a licence and I have conducted some very stressful hearings over the years. The truth is that they are lawful, licensed and controlled, and importantly I haven’t been involved in non-compliance or enforcement issues with our clients once they have secured a licence.

I would like to thank Philip Kolvin Q.C. for the time and input preparing for the hearing and his skilful presentation of the facts against the backdrop of the policy.

Regulations were laid before Parliament on 13 March setting the date for the commencement of important changes to the Licensing Act 2003 brought about by the Policing and Crime Act 2017, which received Royal Assent on 31 January: http://www.legislation.gov.uk/uksi/2017/399/made

The principal changes, which will come into force on the 6 April, surround the operation of interim steps under the summary licence review procedure. They will potentially have a significant impact.

These changes have been afoot for some time, following a study on the summary review procedure by the Regulatory Policy Committee, which reported on 3 February last year. The Report outlined the lack of absolute clarity at present as to whether interim steps cease to have effect after a full review of the premises licence has been determined, in cases where the premises licence holder appeals against that review decision. It also set out the detrimental effect and losses to businesses that are currently being caused where interim steps continue to have effect following the full review of the licence and pending the determination of an appeal.

The changes aim to give access to an expedited appeal process against interim steps, to clarify Licensing Authorities’ ability to review and amend interim steps and to provide clearer legal certainty that interim steps do remain in place, unless removed or amended by the Licensing Authority, until the final determination of review, following an appeal where applicable, takes effect.

The Regulatory Policy Committee’s Report noted that interim steps had been imposed in 106 cases in 2014, the most common of which being restricting the operating hours, suspending the licence or removing the DPS.

The Committee relied upon evidence provided by the Association of Licensed Multiple Retailers which showed that an inability to remove interim steps with the effect that they remained in place after full review proceedings pending an appeal and the lack of any expedited appeal process against interim steps was costing businesses £2.3m per year. It anticipates that these proposed changes will save businesses £0.4m per year in lost profit.

The Committee said:

The Department’s assessment is that costs arising from interim steps that go beyond the review outcomes inappropriately impose costs that are not directly correlated to the offence. Therefore, the Department’s assessment is that removing these costs is a benefit associated with enabling the businesses’ legally compliant activity. The RPC accepts that this is a reasonable approach to differentiating between the impacts on compliant and non-compliant business.”

From 6 April there will be only one chance for the premises licence holder to make representations against any interim steps imposed, on 48 hours’ notice, unless there has been a material chance in circumstances. “Material change” is not defined in the Act, but one might suppose that making voluntary changes to the nature of the operation, such as installing additional CCTV, engaging additional security or voluntarily changing the DPS, might qualify as a “material change”.

The Licensing Authority will now be obliged to review any interim steps imposed when it comes to hear the full review application, and consider whether to withdraw or modify them. The changes to the legislation oblige the sub-committee to consider the status of the interim steps as part of the final review decision and consider what should happen to them as part of their decision-making process. It must listen to representations made by all parties so, for example, if one of the interim steps was suspension of the licence, it would be possible for the operator to make an argument at the full review hearing that this should be lifted. If successful, this would have the effect that, were that to be an appeal against the final review decision, for example, against the imposition of certain conditions, the suspension of the licence would not kick in again pending the determination of the appeal, as is the case at present.

The Act makes it clear once and for all that any interim steps, as modified where applicable, will apply until the period for appealing the final review decision or the determination of any appeal has occurred. However, the Licensing Authority will be at liberty to prescribe a shorter period during which interim steps will remain in place. This at least gives absolute legal certainty, which must be welcomed, that interim steps do remain until the full review decision takes effect, whether or not following an appeal or the expiry of the appeal period.

Importantly, the Act also gives licence holders a new right of expedited appeal against interim steps: such an appeal must be heard by the Magistrates (albeit not necessarily determined!) within 28 days of commencing the appeal.

The other change brought about by the Act which will come into force on the 6 April is the power for a Licensing Authority to revoke or suspend for up to 6 months a personal licence where it becomes aware, by any means, that the personal licence holder has been convicted of a relevant offence or required to pay an immigration penalty. It will not be able to do so before the time for appeal against any conviction has expired, or, in the case where an appeal is lodged, before that appeal is determined. In addition, it will have to give notice to the personal licence holder in order that he or she can make representations within 28 days. There is no right to a hearing, so it appears that the matter will be decided on the papers and behind closed doors. If the Licensing Authority does not intend, following deliberation, to revoke or suspend the licence, it must inform police accordingly and police will then have 14 days to make their own representations. Again, there is no provision for any hearing but the Licensing Authority must then consider the matter further, reach a decision and notify the parties.

The personal licence holder will have the right to appeal against any suspension or revocation of the personal licence, following the standard appeals procedure, that is to say, within 21 days of being notified of the decision.

The Act also makes various minor updating amendments to the list of relevant offences under the Licensing Act.

There are other planned changes to the Licensing Act brought about by the 2017 Act, for which these recent Regulations do not yet set a commencement date. These surround placing Cumulative Impact Policies on a statutory footing by prescribing various requirements for the Licensing Authority to publish their assessment of Cumulative Impact, together with the evidence for it, to consult on the policy and to publish their decision whether or not to implement a policy, together with their reasons. Further changes to come also include introducing greater flexibility in relation to Late Night Levies, in that the Licensing Authority will be able to apply the Levy to part of their area only, to decide whether to include or exclude late night refreshment premises, and will be free to impose different Levy requirements on different parts of their area. We will update you on these further changes as and when we have a date for their implementation.

When the National Lottery and EuroMillions games were set up, the National Lottery also set up the Good Causes Fund as a charitable consortium which sets out to improve communities across the UK. The National Lottery donates a minimum of 28p of every £1 to the Fund as well as all unclaimed prizes and the interest generated and has raised more than 30 billion pounds since it started in 1994. 20% of the money goes to Sports, Arts, Heritage and 40% to Health, Education, Environment and charitable causes.

EuroMillions is one of the most popular lottery games in the world but there are also other lotteries that take place across Europe on a regular basis including EuroJackpot and lotteries in Spain, Germany and Ireland.

However, since 1994 various websites have been set up which have become extremely popular and which offer bets on the outcome of the EuroMillions game and other lotteries throughout Europe. Despite the fact that gambling legislation prohibits betting on National lotteries, it does not prohibit UK customers from betting on EuroMillions draws in other countries even though all of those are drawn centrally in France.

It has been easy in the last 10 years to search the internet and find several of these sites which offer bets on other lotteries and there has been an increasing swell of opinion which criticises these websites for taking money away from the good causes. This was one of the principal reasons for establishing lotteries in the first place. The websites are not bound by any commitment to give any stakes to good causes which is, of course, unlike the National Lottery.

Those who represent the websites argue that they represent “fair competition and an alternative from those disenfranchised with the current monopolistic market and offer”.

It seems that the Lotteries Minister Tracey Crouch does not agree and it was announced at the start of March that there will be a consultation on closing as what is described as a loop hole. Tracey Crouch said “We want to act to ensure that money going to good causes is protected and that there is no confusion around the EuroMillions draw, providing the same levels of clarity as there is with the National Lottery”.

There have been various accusations flying about from both sides of the argument relating to allegedly false and misleading statements, although it is not surprising to read that Camelot are very pleased with the recent announcement.

At the same time as this announcement the Malta Gaming Authority has awarded Lotto Warehouse its first B2B Class 4 platform licence, allowing the company to host managed betting on the outcome of lotteries. This company was set up in 2016 and will now be allowed to offer other operators the chance to add a portfolio of lottery betting products to their platforms.

Lottoland has filed an application to have its own lottery in several German federal states in order to challenge the German lottery monopoly and become the first private lottery operator of a major lottery in the country. This follows on the back of Lottoland receiving its approval in the middle of last year to operate in the Republic of Ireland, which was its third new licence territory in the past 12 months.

No doubt there will be further developments in this story when the consultation is released.