Posted by Woods Whur | Licensing Law

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.