Category: Licensing Law

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Wetherspoons Refused in Headingley

After sitting in the applicant’s chair for eleven years for the Leeds Licensing Sub-Committee I sat in the objectors chair for the first time ever on 29 November 2016.

I was representing objectors to the application for a premises licence at the former Elinor Lupton Centre Headingley Lane in Leeds by JD Wetherspoons.

There were a number of residential and business objectors to the application but no valid objections persisted by the responsible authorities.

Wetherspoons made their application for premises which they suggested could hold up to 500 people – the premises falling in the Cumulative Impact Policy Area for Headingley.

Hearing evidence from myself, residents and ward councillors the Licensing Sub-Committee took a week to release their decision which we received on Friday 9 December 2016. They formed the view that “The application would be likely to add to the cumulative impact on the crime and disorder and public nuisance objectives. The premises would have a large capacity and, on the applicant’s own case, would be attractive to a broad customer base.”

The committee, in their reasons, went on to say, “There was absolutely no criticism from the committee in respect of the business aims or strategy of the enterprise. Irrespective of the steps taken by the operator to control or moderate the behaviour of customers, the committee considered that there would be an increased impact on public nuisance and crime and disorder as a consequence of the numbers of people who would be attracted to the area – whether taking part in the Otley Run or otherwise – and subsequently dispersed, including via the surrounding residential areas, at least some of whom would in all probability be intoxicated.”

In refusing the application the committee said that, in their view, there was an absence of measures that it considered as demonstrating that there would be no additional impact. The committee in ultimately refusing the application said “The committee reminded itself that the councils policy is just that – a policy – and that each case must be considered on it’s particular circumstances and with an open mind. However, despite good intentions of this well established operator, the committee were sympathetic to the concerns of the local residents about such a large premises obtaining a licence and the impact it would have on this residential area.”

On the evidence that was before the committee I am certain that this was a correct decision and it will be interesting now to see whether Wetherspoons decide to the appeal the decision as there are robust reasons in the notice of determination that would be considerably difficult to overturn on appeal.

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Changes afoot on Automated Self-Exclusion for Lotteries

Recently, I was approached by an External Lottery Manager (“ELM”) client who was concerned about one of the Gambling Commission’s (“GC”) changes to the social responsibility provisions of its Licence Conditions and Codes of Practice (“LCCP”). ELMs are the commercial partners of good causes who assist them in the administration of and promotion of their lottery and raffle schemes. They tend to have multiple charity clients.

The change that was troubling this client came into force on 31 October 2015. It took the form of a new Social Responsibility Code provision. Such provisions have the force of licence conditions and a breach of them by an operator may lead the GC to review the operator’s licence with a view to suspension, revocation or the imposition of a financial penalty and would also expose the operator to the risk of prosecution. The Code provision in question represents the introduction of a new requirement to enable customers to self-exclude by using a wholly automated process using remote communication, in addition to the method previously provided for, namely, contacting customer services.

The new Social Responsibility Code provision reads as follows:

“Customers must be given the opportunity to self-exclude by contacting customer services and in addition by entering an automated process using remote communication. In order to avoid inadvertent self-exclusion it is acceptable for an automated process to include an additional step that requires the customer to confirm that they wish to self-exclude. The licensee must ensure that all staff who are involved in direct customer service are aware of the self-exclusion system in place, and are able to direct that individual to an immediate point of contact with whom/which to complete that process.”

This new provision applies only to remote operators. My client was concerned because it helps a large number of charities run lotteries and raffles using remote communication. Its arrangement for enabling customers to self-exclude, which it provides to all its charity clients, involves placing information on their websites telling customers that it is possible to self-exclude but that, in order to do so, they must click on a link, and fill in a form requesting self-exclusion which they must then either post or email to the operator. I was asked to advise as to whether I thought that this process satisfies the requirements of a fully-automated self-exclusion procedure.

After considering the matter, I went back to the clients and advised that I was afraid that I didn’t believe that their current arrangements satisfy the Gambling Commission’s new requirement, but that I would take it up with the regulator. The rates of self-exclusion in the lotteries sector are very low indeed and in addition the new provision was, in my view, primarily addressed at remote gambling products that involve “instant win” or a high incidence of repetitive play. It is more targeted, for example, at online slot-machine-type games.

I discussed the matter with one of my contacts at the GC, who, in turn, sought the views of colleagues internally.

The new Code Provision is aimed at ensuring that customers can self-exclude in a simple and straightforward way, but does not detail the exact process that is required. However, the GC’s response confirmed my view that my client’s current arrangements would not be considered by the regulator as a fully-automated-process. However, the GC has now conceded that it is perhaps inappropriate to apply this new requirement to most remote lotteries. Its response stated:

“The requirement was primarily aimed at remote gambling operators (including lottery operators) who offer on-line gambling via a website. However, given the way that most remote lotteries operate – simply receiving low-level, regular subscription payment details by telephone or email and that the take-up of self-exclusion in the lotteries sector is very low, it was possibly an error to have applied this provision to all lotteries.”

The GC now intends to seek internal approval which, if given, may lead to a consultation on the matter, in order to amend the LCCP to exempt remote lotteries which do not offer gambling via a website or do not offer on-line instant win lotteries or other types of remote lotteries involving repetitive play from this provision.   In the meantime, the GC has said that it would be “very unlikely” to take compliance action against an otherwise compliant lottery operator who did not offer gambling via a website or instant win lotteries and who had not made available a fully automated self-exclusion process.

This was a significant positive outcome for my client in that, given the number of its charitable clients using its current arrangements, significant work would have been required in order to revise them, had the GC so stipulated. This exercise, which involved being frank with the GC about my view that I did not believe (on a no-names basis, of course!) that the client’s current arrangements satisfied the strict letter of the Social Responsibility Code provision, has demonstrated that a constructive and collaborative approach with the regulator can, in appropriate cases, achieve positive results and, on this occasion, it may well result in a change in the law.

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What Role should the Health Body play in Licensing Applications in England and Wales

Paddy Whur discusses the role of health bodies in premises licence applications in England and Wales.

I have recently had to deal with a representation by the DPH (Director of Public Health) in relation to a premises licence application in London.

We had undertaken a significant amount of pre-application consultation with the licensing authority and particularly the Environmental Health Officer and licensing police officer for the area. In addition we had undertaken significant public consultation before we had lodged the application and had received positive indications from all we had consulted with.

I was somewhat surprised after putting in the application for a new premises licence to receive a representation from the DPH and this was asking the authority to refuse the application outright as it contravened the crime and disorder and the public nuisance licensing objectives.

The health body, acting as a responsible authority under the Licensing Act, is in a difficult position in England and Wales in that there is currently no promotion of health licensing objective for them to hang a compelling representation upon.

When the list of responsible authorities was extended to include the health body for a licensing authority area, the Government were debating whether to introduce a fifth licensing objective but declined to do so.

Previously I had dealt with representations from the DPH in cases where there were multiple objections and in real effect they were adding weight to the objections raised by the application.

This was the first time that I have dealt with a case where the sole representation was from the director of public health and they were seeking to engage the authority to refuse the application and public nuisance licensing objectives.

I turned to the Section 182 Guidance document to see what is said in there regarding representations from health bodies in England and Wales. Paragraphs 9.20 to 9.24 set out the advice given by the Home Office. Paragraph 9.20 states “If the authority wishes to make representations, the DPH will need to decided how best to gather and coordinate evidence from other bodies which exercise health functions in the area, such as emergency department and ambulance services”. Paragraph 9.21 says “Health bodies may hold information which other responsible authorities do not, but which would assist a licensing authority in exercising its functions. This information may be used by the health body to make representations in its own right or to support representations by other responsible authorities, such as the police.” No evidence had been submitted to support the representation by the authority.

I immediately asked to have a meeting with the representatives from public health.

We discussed the two grounds of their objection and in particular focussed on the following relevant issues.

Crime and Disorder

We discussed with them that the police are the statutory responsible authority and experts on crime and disorder when it comes to informing a licensing authority.

To this effect, they enjoy enhanced status under Paragraph 9.12 of the Guidance (“The police should be the licensing authority’s main source of advice on matters relating to the promotion of the crime and disorder licensing objective…the licensing authority should accept all reasonable and proportionate representations made by the police unless the authority has evidence that to do so would not be appropriate for the promotion of the licensing objectives”).

I stressed to the Public Health Department that it was unique in my experience that their department was opposing a new grant on the Crime and Disorder licensing objective when the police had written to say “The operating schedule contains sufficient control measures that address the prevention of crime and disorder licensing objective and therefore we have no further comment to make.” I made the point that it would be difficult for the licensing authority to refuse the grant of the licence on crime and disorder grounds purely on the basis of a contention from public health, not backed up by evidence, when the police had assessed that the operating schedule exhibited sufficient control measures.

Prevention of Public Nuisance

A similar position arose here in that the Environmental Health Department of the licensing authority, being the statutory expert for public nuisance, had not objected to the application. They had been engaged throughout and had received extensive policies dealing with event safety, travel plans, dispersal policies and a noise management strategy. Again we highlighted that there had been significant local engagement by way of invitations to residents, businesses and councillors. Further, there had been attendance at business and community forums in the area and there had been no objection from the Environmental Health Department nor any businesses, residents or ward councillors.

The meeting was fruitful in that the public health body went away and considered their position before coming back to withdraw their representation to our application, it then being granted by way of delegated authority.

I think this case significantly highlights the difficulty that the health body are in when seeking to engage the licensing authority in a representation to the grant of a new premises licence.

In my view, it also exhibits how important it is to invest the time in pre-application meetings, to finesse a significant application before it is lodged with a licensing authority.

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Gambling Commission Urges Operators to up their Game on Consumer Focus

The Gambling Commission held its first Raising Standards Conference at its offices in Birmingham this week and its Chief Executive, Sarah Harrison, took the opportunity to address operators on the Commission’s vision for making the industry “the most trusted gambling operators in the world”, a vision that might lead it to impose tougher penalties for non-compliance in the future.

Although the Commission concedes that some progress has been made with the development of harm reduction strategies at operator level, and acknowledges the hard work done by the Association of British Bookmakers and the Remote Gambling Association on in-play messages and play limits, Ms Harrison made its view plain: more needs to be done.

She said:

“…you need to raise your ambitions and your sights higher. You need to step up the pace of change – in how you handle customer complaints, ensure advertising is clear, simplify terms and conditions, develop your risk management strategies on money laundering, evaluate the impact of social responsibility initiatives – and, working across all these areas, in how you do more to share best practice.”

The Commission’s vision for raising standards rests on its aim to ensure that operators place consumers at the heart of what they do, so that consumers have trust of, and confidence in, the industry. This is consistent with the document it published last month, “A two-way conversation: our plan for communicating with consumers”, with the work it is undertaking jointly with the Competition and Markets Authority on the fairness of operators’ terms, conditions and practices, and with the current Government’s focus on consumer welfare. Ms Harrison cited the examples of the banking and automotive sectors, saying:

“The message from those examples is clear – don’t wait for a crisis to happen that shakes the very foundation of customers’ trust in your industry. Act now and demonstrate to consumers that your interest in their needs is genuine.”

The Commission is urging operators to see best service standards as part and parcel of their competitive edge, to be driven in the way in which they deal with customer complaints by the value of customer feedback rather than merely paying lip-service to an obligation, and to treat licence and code obligations as a minimum obligation rather than an artificial cap. Ms Harrison quipped that she would like to see an industry “maybe even where the likes of John Lewis looks to one of you to learn how to improve their customer offer!”

Ms Harrison reiterated her view that effective consumer protection means focussing more on what customers need and less on what the regulator expects. She singled out a number of specific areas where work is required in order to raise standards: social responsibility, treating consumers fairly and money laundering.

On the first area, the Chief Executive set out the five aspects that the Commission will look for when assessing whether a social responsibility initiative is successful, as follows:

  • Clarity of purpose – is the initiative aimed at preventing harm or simply dealing with harm already occurring?;
  • Evaluation – how are operators assessing the impact of the initiative and sharing findings?;
  • Added value – are operators doing the bare minimum or taking their responsibilities further?;
  • Customer focus – are operators considering every aspect of the customer journey?; and
  • Transparency – are operators open about the inputs that have informed their initiatives?

On fairness to customers, Ms Harrison highlighted the huge increase in the last 12 months in the number of complaints or expressions of concern it has received from consumers – at approximately 80,000, this number represents over 300 per cent on the last two years. The main focus for customer concern surrounded self-exclusion, withdrawal of customer funds, terms and conditions and marketing and advertising. Ms Harrison announced that, in addition to the work it is currently undertaking with the CMA, the Commission will be conducting a review of ADR provision in the gambling sector towards the end of this financial year, and this will include examining the current practices and requirements in place for handling customer complaints. I would imagine that this will entail a consultation process, but operators are being urged to steal a march and start driving up standards in complaints handling and redress now.

Turning to the issue of money laundering, the speech obviously referred to the recent high profile settlements reached with certain operators, and announced the Commission’s intention to submit its advice “soon” as part of the consultation process on the Fourth Anti Money-Laundering Directive. Ms Harrison urged operators “specifically to raise [their] game and be far more curious about the source of customer funds”. She criticised a leadership culture which places commercial gain over compliance and which adopts a “wait and see” approach, in other words waiting until the source of funds is proven to be illegal before acting. This, she said, is “far from a risk-based strategy” and is simply not credible.

Perhaps one of the biggest take-aways from the address surrounds the Commission’s planned changes to the use of its enforcement powers. It plans to make public in more detail the outcome of regulatory decisions, not just early settlements. It will remove the bias that currently exists in its Statement for Licensing and Regulation in favour of a regulatory settlement over a licence review, and will instead place all of its enforcement tools on an equal footing and “use the right tool for the job”.

The changes will mean a likelihood of higher penalties going forward. Financial penalties currently reflect the need to remove profits from non-compliance, take account of costs and consumer harm, and deter poor compliance, but Ms Harrison indicated that to these considerations, in future a punitive element will be added, in cases of systemic and repeated failings where the Commission can detect no improvement in behaviour. This, together with the threat of more licence reviews, should be treated as a clear warning to operators, particularly given that financial penalties imposed in recent times have, even as matters stand, been hefty.

The Commission says that it is committed to using its enforcement tools proportionately, but now takes the view that settlement will not necessarily be the best way of achieving that proportionality. Settlement will nonetheless remain a key mechanism in driving compliance where the facts are agreed, and particularly in cases where the operator comes forward and declares an incidence of non-compliance, takes measures to implement a quick and effective improvement plan designed at preventing reoccurrence and gives the customer redress. Operators will receive credit for this and in such cases the Commission will “certainly consider resolution through settlement rather than licence review”. This underlines the importance of operators’ co-operating fully with the Commission in an open and transparent way, something which is required by the Licence Conditions and Codes of Practice in any event.

Ms Harrison announced that the Commission will consult on changes to its enforcement policy before Christmas. We will update you once the paper is published, and on the other developments announced in the Chief Executive’s speech, in future editions of this newsletter. In the meantime, should you have any queries or concerns, please contact one of the team.

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It’s Time to Undertake a Health Check of your Licence

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.

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New Licence Condition on Gambling Advertising comes into force at the end of this month

The Gambling Commission has decided to introduce a new licence condition to curb the advertisement of gambling products on websites showing unauthorised content. The new condition will come into force on 31 October and will apply to all operators licensed by the Commission, whether remote or non-remote.

This development has come about as a result of the Commission’s consultation between 30 September and 30 December last year on the wider issue of the prevention of crime associated with gambling. Whilst that consultation’s primary focus was on measures to prevent money laundering, it also set out the Commission’s concerns about gambling advertising appearing on pirate websites providing unauthorised access to copyrighted content. Research has established that advertising for gambling products features disproportionately heavily on such websites, to such an extent that the main culprits, in the sense of allowing their advertising to appear on websites functioning illegally, are gambling companies.

Why should the Commission be so concerned about this issue? The answer lies in the fact that it considers gambling operators to be supporting these illegal websites by placing their advertisements there. This means that, in the Commission’s view, they are effectively funding crime. This, clearly, is in direct conflict with the first licensing objective under the Gambling Act.

The Commission therefore issued a short supplementary consultation to look at dealing with this issue, which ran from 9 May to 20 June this year, off the back of the initial, wider, consultation.

During the course of the supplementary consultation process, the Commission did acknowledge that gambling operators had already been working with organisations such as the City of London’s Police Intellectual Property Crime Unit (PIPCU) and the Federation Against Copyright Theft (FACT), using tools already at their disposal such as commercial content verification software, and already taking action against their affiliates who were found to be breaching the rules. However it considered the action taken thus far to be inadequate and unsustainable. It described the current approach as merely reactive, arising largely from the Commission itself bring to major operators’ attention the fact that their advertising is appearing on illicit websites. Despite this, the Commission noted, such advertisements continue to appear and hence it has concluded that additional measures are required to tackle the issue.

The Commission published its response to the consultation in July, in which it noted respondents’ concerns that it was seeking to proceed by way of a new licence condition, rather than by a new ordinary or social responsibility code provision. Nevertheless, the Commission has decided to press on with its plans for a new condition: it does not consider an ordinary code provision to carry sufficient weight commensurate with the seriousness and persistent nature of the problem and further thinks a social responsibility code provision inappropriate, because these are designed to ensure consumer protection, rather than to combat crime. These factors have led it to the conclusion that a new condition is the correct way to proceed.

The Commission has, however, taken on board respondents’ alarm surrounding the difficulty in controlling the actions of third party affiliates. Of course, there is already a social responsibility code in the LCCP requiring operators to take responsibility generally for the actions of third parties with whom they contract for the provision of any aspect of their business related to the licensed activities. However the Commission still sees the need to introduce a specific requirement relating to advertising on pirate websites by affiliates. That said, it has acknowledged the concerns raised by some respondents to the consultation, who flagged up the speed with which advertisements often appear and the very large number – sometimes running into the tens of thousands – of affiliates they use.

As a result, the new condition will introduce an absolute requirement on operators to ensure that they do not, themselves, place digital advertisements on websites that provide unauthorised access to copyrighted content, but the obligations for operators surrounding the actions of third parties will, by contrast, only extend to taking all reasonable steps to ensure that they do not do so and to taking the appropriate steps if they do, including providing within their agreements with third parties the right promptly to terminate the agreement, subject always to the relevant dispute resolution provisions, in such an event.

Operators will be concerned as to how they will ensure that they comply with the new requirement from the end of this month in a “real life” environment. There are various practical steps that they can take to ensure that they do.

PIPCU maintains, and regularly updates, the so-called Infringing Websites List (IWL). This can be obtained via their website: https://www.cityoflondon.police.uk/advice-and-support/fraud-and-economic-crime/pipcu/Pages/Operation-creative.aspx

Operators should obtain access to this and monitor it on a regular basis to ensure that they themselves do not place any advertisements on the sites listed. In addition there exists, as mentioned above, various commercial content verification software that they can use. Needless to say, if operators discover that advertisements for their services have been placed on illicit websites, they should take immediate action to have them removed. Not only that, but they should ascertain how it was that this came about and keep a record of their investigations, findings and remedial steps taken. Operators should also review their agreements with affiliates before the new licence condition comes into force to make sure that they do include a provision permitting them to terminate the agreement in cases where the affiliate does place an advertisement on a pirate website, and introduce, document and implement a clear policy on how they will deal with breaches. Of course, affiliates should themselves regularly and carefully monitor the IWL and they should be encouraged to do so.

If you have any concerns about compliance with the new condition, please do not hesitate to contact me or one of the team.

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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.

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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.

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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!

 

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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.