Author: Woods Whur

It still surprises me that we often get calls from some clients asking us fairly basic questions. Who is the designated premises supervisor at these premises? What time can I operate until on New Years Eve? The police tell me I’ve got a certain condition on my licence Is this correct?

It is easy for an operator to become wrapped up in running the business and doing the day to day tasks for them sometimes to forget to take a step back and ensure that their house is in order. Christmas and New Year are always an exciting time for the trade with business opportunities at their best and customers who generally want to have a good time. It is reported that 400 million pints will be drunk in pubs in December and this does not include cocktails, wine and other drinks.

I think the start of November is a great time to take stock of licensing matters and to ensure that your licensing file is in order. I would always task one of the management team to do a presentation to all staff on the premises licence, conditions and undertakings, licensing objectives and other general responsibilities. Whilst Christmas and New Year can be a profitable time for the industry is also a time when resources can be stretched and some customers may want to partake in the festivities more than usual. I would draw up a list of matters to check and go through this with the whole team to ensure that everybody buys in to a general commitment to promote the licensing objectives and comply with conditions on the premises licence. Each list may be different but examples of matters which I would include in the list are as follows:

• Have all Temporary Event Notices been applied for the Christmas and New Year period?
• Have all risk assessments been undertaken for temporary events?
• Do we actually know what sort of party or evening we are expecting at temporary events which are booked by private individuals?
• Are all risk assessments generally up to date?
• Have health and safety and fire checks been undertaken?
• Are the management team fully aware of the conditions on the licence?
• Are the management team fully aware of the operational hours on the licence in particular for Christmas and New Year?
• Who is responsible for social media?
• Is the social media message the message that the management team want to send out in to the public forum?
• Are any special nights involving pub games legal?
• Are all staff fully aware of the mandatory licensing conditions?
• Are staff aware of the duty not to sell to customers who appear to be intoxicated?
• Have additional staff been obtained for the exceptionally busy nights?
• Will the requisite number of door staff be available?
• Are training records up to date?
• Is it a time to undertake some refresher training?
• Have a meeting with the local police and see if there are any local initiatives.

The above list is of course not exhaustive. Christmas and New Year will be a fantastic time but it is very important to ensure that all folders and risk assessments are up to date and that staff are fully aware of their obligations to the general public during the Christmas period.

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.

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.

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!