Posted on

Temporary Event Notice – A couple of recent cases

I suppose that one of the more interesting aspects of working with the Licensing Act 2003 is that we regularly get involved in cases in which there is a disagreement over the interpretation of the Licensing Act 2003. This also just goes to show that the best way to fully understand the Act is to be involved in the legislation on a daily basis and we are certainly fortunate to be in that position. We regularly get telephone calls from clients and Local Authority officers alike asking for our interpretation of various sections of the legislation which are not commonly used and which are the subject of a debate.

I don’t think that I personally have been involved in a contested Temporary Event Notice (TEN) for a few years. I have been involved in lots of discussions with clients and Local Authorities with regard to applications for TENs. We submit a large number of TENs in Westminster and work closely with Westminster Police and Westminster Licensing Department on these applications. The police will regularly ask us for a “last entry time” or for confirmation that all existing conditions on the licence will be adhered to with the TEN but very rarely do we actually go to a hearing for a contested TEN.

In one recent case that I was involved in the police (and I will not name the premises or the Local Authority area) visited some premises during a TEN when the TEN had been applied for to start prior to the end of permitted hours on the Premises Licence. If a terminal hour for alcohol is 11pm on the Premises Licence the TEN had been applied for from 8pm to 1am giving the applicant a two hour extension but also the ability to operate under the TEN between 8pm and 11pm. This was for a particular event and the TEN had been applied for with the intention of the existing conditions on the Premises Licence not being complied with during that period from 8pm to 11pm. The police were adamant that as the premises were trading at 8pm then the existing conditions should have been complied with but I am afraid that this is not correct. The premises were operating not under the Premises Licence but under the Temporary Event Licence. The Temporary Event Licence was being displayed on the premises and as the police had not objected to the TEN and no conditions had been placed on the TEN then the premises could operate under the TEN without conditions at all.

We did not submit the aforementioned application and it may be that if we had submitted the application we would have specifically noted on the TEN that the existing conditions on the Premises Licence would not be complied with during this period of time and we would have set out the reasons why this was the case. The applicant had applied in person and not done this but nor had the police raised the question and this just goes to show how important it is for the police and Local Authorities to check that their understanding of the TEN applied for is correct.

In a second case I have recently been involved with the police did object to a TEN and the matter did proceed to a hearing before the Licensing Committee. During the hearing there were submissions as to various conditions which should be considered if the Licensing Authority were prepared to grant the application. There is then a debate as to what conditions the Licensing Authority can impose and this dealt with very clearly in the guidance issued under Section 182 of the Licensing Act 2003 at paragraph 7.37.

The 2003 Act provides that only the Licensing Authority can impose conditions to a TEN from the existing conditions on the Premises Licence and the Licensing Authority can only do so:

  • If the police or EHA have objected to the TEN;
  • If that objection has not been withdrawn;
  • If there is a licence or certificate in relation to at least part of the premises in respect of which the TEN is given; and
  • If the Licensing Authority considers it appropriate for the promotion of the licensing objectives to impose one or more conditions.In this particular case the Licensing Authority did impose all existing conditions on the Premises Licence onto the TEN. The applicant had offered one or two other measures during the course of the hearing and the Licensing Authority and their decision noted this and made it quite clear that they expected the applicant to comply with this additional measures as well even though they were not conditions on the TEN. There is no doubt that the applicant will have to comply with these additional measures or else there is a significant risk of future action being taken against the premises if incidents occurred on the evening of the TEN and the applicant had not been complying with the measures that were promised to the Licensing Committee.
  • The decision is one for the Licensing Authority alone regardless of the premises users views or willingness to accept conditions.

The Licensing Authority is not able to impose conditions on the TEN which are not conditions on the existing Premises Licence.

Posted on

Problems at Licensed Premises – Do we always need to jump to a review / summary review?

I was asked to advise in a case this week which brought up a much-discussed topic. Is there always a need to jump to formal proceedings when problems occur at a premises or can voluntary action by the operator save a huge amount of time and money?

The main issue was the violent disorder that had taken place at a pub in London where there had been issues on football match days. The specific facts of the particular incident were relayed to me and I was asked to advise whether I thought there was sufficient evidence to bring about a summary review of the premises licence or whether it should be a standard review.

When assessing the track record of the premises and the level of the issues which had brought about the concern, I advised that I did not think a summary review was an appropriate course of action. No one had been arrested and charged as a result of the public disorder and, whilst the flash point had happened within the public house, the main disorder had happened away from the premises. In my view, and this was reflected in my advice, there were insufficient grounds to suggest that the premises were “associated with serious crime or disorder”.

There was clearly evidence of live management issues at the premises and I advised in the circumstances that a standard review would be appropriate to deal with those issues, if the operator was not prepared to make changes voluntarily.

A meeting took place between the relevant police licensing department and the operator and as a result of that meeting, the operator agreed to make a minor variation to the premises licence to change management style and have this recorded on the licence with additional conditions. This was clearly targeted at the issues which had brought about the police concerns in the first place.

In the circumstances the police accepted that there was no need therefore to go to formal review proceedings and the operator moved to lodging the minor variation application immediately and volunteered to make changes prior to those new conditions being endorsed on their licence.

What a fantastically enlightened way of dealing with issues. This has removed the need for detailed and expensive proceedings before the licensing authority which would probably have achieved exactly the same result, but some six weeks further down the line.

It just goes to show that with a positive will on both sides there are real opportunities to solving these issues without the knee-jerk decision to go direct to formal proceedings.

The sum total of work involved for all parties was half a day rather than all of the work and expense that would have been needed to bring about formal review proceedings.

Hopefully this enlightened approach taken by the police and a responsible operator in these circumstances can ripple around to other areas where voluntary interaction can be used to save significant man power and cost.

Posted on

Paul Holland joins Woods Whur

Andy and I are delighted to be able to announce that Paul Holland has joined Woods Whur. Andy and I have known Paul for twenty five years and we are delighted that he has agreed to join us.

Paul has specialised in licensing for thirty years, as well as heading his previous firm’s private client department. He has thirty years’ advocacy experience and represents clients in all applications, reviews and appeals under the Licensing Act 2003 and the Gambling Act 2005. He has developed particular expertise in dealing with the licensing requirements of everything from a small corner shop to an international sports stadium. Paul has a significant network of contacts within the regulatory authorities of Hull, Humberside, East and North Yorkshire which compliments our practice in West Yorkshire and nationally. It is on that basis that Andy and I were delighted that after a successful career as a partner at Stamp Jackson & Proctor and latterly at Quality Lockings Solicitors in Hull, he has agreed to join Woods Whur as a consultant. We are looking forward to adding value to his loyal client base.

He prides himself in working with operators from the initial planning stages to the final grant of licences, representing his clients’ interests before licensing sub-committees and in the Magistrates’ Court, should the need arise.

We continue to be keen to grow our national reach and will be looking to bring other lawyers into the business in similar situations to Paul.

Posted on

Aviation Minister, Lord Ahmad, “examining” airport alcohol sales

Many of you will have noticed reports in the press that the sale of alcohol at airports and on planes is currently being reviewed by Lord Ahmad, the newly appointed Aviation Minister.

I enjoy the first G&T of the holiday at the airport, before boarding – who doesn’t? It helps to ease the process of passage through an airport, which, let’s face it, can be something of an ordeal. The question now, though, is whether the irresponsible few are going to spoil things for the rest of us.

Lord Ahmad has said that “I don’t think that we want to kill merriment altogether”, which is reassuring to a degree, but it will be interesting to see what the outcome of his review is, especially given statements by the Government even relatively recently that it had no specific plans to address the issue of alcohol-related disorder on flights.

Police statistics obtained by the Press Association in response to a Freedom of Information Act request disclose that at least 442 people have been held on suspicion of being drunk on an aircraft or at an airport in the last two years. In one recent incident, a female passenger punched an Easyjet pilot in the face, and a Ryanair flight from Luton to Bratislava had to be diverted to Berlin following a mid-air fracas involving members of a stag party.

However, when one considers that over 251 million passengers passed through UK airports in 2015 and there were over 2.1 million flights, the conclusion that such incidents are very rare indeed is inescapable.

In legal terms, the Licensing Act 2003 does not apply to alcohol sales on aircraft or airside at an airport (once through check in, passport control and security). This means that there is no need for a premises licence, with the attendant restrictions on operating hours or, indeed, age for those purchasing alcohol. This means that, technically speaking, an 11 year old could purchase a pint at 5 in the morning.

It would be open to Lord Ahmad to change this position in relation to sales of alcohol at airports because the relevant section of the Act, s173, gives the Secretary of State a reserved power to remove the exemption that applies to them. However an amendment to the primary legislation would be required to bring about a need for a licence for sales of alcohol on aircraft themselves.

Of course, the fact that the Licensing Act does not apply to these sales of alcohol does not mean that they are taking place without any controls whatsoever. If that were the case, then the number of incidents would doubtless be a lot higher. Airside operators and airlines alike have their own policies and procedures in place to ensure that alcohol is sold responsibly, and certainly would not want to jeopardize their relationship with airport operators such as Heathrow Airport Holdings, formerly BAA. I have seen age verification being carried out at an airside bar and of course those operators will be implementing Challenge 21 or 25 policies in line with their internal procedures for sites elsewhere in their estate.

The Airport Operators Association has recently published the UK Aviation Industry Code of Practice on Disruptive Passengers, in conjunction with UK Airport Police Commanders and organisations such as the Association of Licensed Multiple Retailers. Signatories to the Code participate voluntarily. The Code emphasises three core principles: passengers are responsible for their own behaviour, disruptive behaviour cannot and will not be tolerated, and reducing disruptive behaviour is a shared responsibility of all partners on the ground and in the air. However, it also says that, whilst alcohol consumption is a factor contributing to disruptive behaviour, it is not the only factor.

The Code requires signatories to train their staff to ensure that alcohol is sold responsibly, and airports to ensure that their bars, lounges and restaurants implement best practice, including establishing Best Bar None or equivalent schemes. The Code prohibits sales of alcohol to intoxicated persons and limits the consumption of alcohol on flights to that sold there – as opposed to passengers dipping into bottles of spirits that they have bought in Duty Free.

Against the background of what is a comprehensive, if voluntary, Code, it remains to be seen what further measures the Government might introduce. In the meantime, for those of you still to depart on holiday this year, I hope you enjoy your pre-flight G&T. Cheers!

 

Posted on

Gambling Commission continues to take action and introduce further changes

On the 31st October 2016 a new version of the LCCP comes into force to implement changes which are being brought in on the back of recent consultations. The Gambling Commission is keen to point out on its website that the LCCP are not static but “evolve over time” which I suspect is similar to the way that operational policies evolve and develop at gambling establishments throughout the UK. It is interesting to note on the Gambling Commission’s website that the LCCP evolve so as to take into account developments in the industry, emerging evidence or the most effective means of promoting socially responsible gambling. I am of the firm view that this also applies to operators and their operational policies, which have to continually change to take into account recent developments. I do not subscribe to the argument that just because policies have to change all the time means that they were not fit for purpose prior to the policies being changed. I suspect there will be more on this topic in later articles!!

The Autumn 2016 amendments are based on the recent consultations and relate to the following: the prevention of crime associated with gambling, placing digital adverts responsibly, extending the requirement to assess and manage money laundering risk to non-remote lotteries and controlling where gaming machines may be played in betting, bingo and casino premises.

The Gambling Commission website also reports the results of various cases in which enforcement action has been taken recently. Smart TV Broadcasting Limited had its Operating Licence made the subject of a review under Section 116 of the Gambling Act 2005 and under Section 118 of the Act the Gambling Commission decided to suspend it because it suspected that Smart TV was unsuitable to carry on the licensed activities. At the time of the suspension there were customers who had outstanding balances in their accounts and subsequent to the suspension Smart TV Broadcasting Limited surrendered its licences. The Gambling Commission have confirmed that this does not prevent the settling of outstanding winning bets.

It was also confirmed on the 10th of August 2016 that the Gambling Commission has supported South Wales Police in an operation which led to ten people being arrested as part of an investigation into match fixing. The match fixing related to betting patterns on a match between Port Talbot Town and Rhyl on the 9th of April. No further information is available due to the ongoing nature of the criminal investigation.

The implementation of the new LCCP coupled with the Gambling Commission continuing to take enforcement action, should serve to reinforce the fact that all operators in the UK must keep fully up to date with all changes and be fully aware of exactly what is required in terms of their operational policies.

 

Posted on

House of Lords Licensing Committee – An Update

As readers will no doubt be aware there has been constituted a House of Lords Committee which has been established to carryout scrutiny of the Licensing Act 2003. The Committee has published it’s call for evidence and invites all interested parties to submit written evidence by the 2nd of September 2016.

The call for evidence is available at :-

http://www.parliament.uk/documents/lords-committees/Licensing-Act-2003/call-for-evidence-licensing-act-2003.pdf

If you wish to respond to the call for evidence this can be achieved by clicking on the following link:-

http://www.parliament.uk/licensing-act-committee-written-submission-form

It is really important to play a role in this consultation.

I have regularly stressed to clients and operators the need to do so. We were hamstrung in some SEV renewals when Leeds City Council put out a consultation document before looking to change their policy and in effect reduce the number of Sexual Entertainment Venues from seven to four. When we challenged the decision making and policy in the High Court we were advised in clear terms through the judgment that we were seeking to close the stable door after the horse had bolted. The High Court was very clear in saying that we should have challenged the legitimacy of the changes in policy much earlier than through the High Court after renewals were refused.

This is a significant lesson and operators and interested parties should not complain about any changes if they do not get involved in consultations when invited to do so.

The key issues to be analysed in the consultation fall under the following headings.

  1. Licensing objectives.
  2. The balance between rights and responsibilities.
  3. Licensing and local strategy.
  4. Crime, disorder and public safety.
  5. Licensing procedure.
  6. Sale of alcohol for consumption at home.
  7. Pricing.
  8. Fees and costs associated with the Licensing Act 2003.
  9. International comparisons.

The parameter of each of those headings is very clearly established in the documents contained in the links above. We will continue to monitor the progress of the House of Lords Committee and publish any findings as and when they become public.

I can only stress again that this is an opportunity to interact in the process and interested parties should not be afraid to do so.